JUDGMENT of Mr. Justice Hardiman delivered the 11th day of December, 2013.
Overview.
In my view, this is a case of very great importance. It is about whether the Gardaí can prosecute a citizen on a serious charge, based on eye witness testimony alone, without taking what is said to be an obvious step to gather forensic evidence (fingerprints) which has the potential to contradict the eye witness testimony. No explanation has been given of the failure to take fingerprints, or of the destruction of the sole item from which the prints could have been taken, without even informing the defendant of what was alleged against him.
The appellant, Jason Wall, is a young man from South County Dublin. He has no previous convictions. He was a back seat passenger in a Honda car driven by a young woman on her first provisional licence. The car went on to its wrong side of the road and struck an oncoming vehicle. The front seat passenger, another young woman, was tragically killed in the impact. The party in the Honda were returning from a christening celebration in a public house, about half past midnight one night in mid-August.
After the accident, the driver said she could not explain what had happened - she lost control of the car. The Garda Forensic Collision Examiner concluded in his report:
“The primary cause of the collision lies with the driver of the Honda who failed to keep her vehicle on its correct side of the road.”
Some days after the accident, the driver was interviewed by the Gardaí under legal caution. The significance of this form of caution is discussed below. At this interview she changed her account and claimed for the first time that Jason Wall caused the impact by reaching between the front seats of the car, grasping the steering wheel and pushing it to the right.
For some unexplained reason, the Gardaí did not tell Jason Wall of this allegation for about four months, until December of the relevant year. Long before that, on the 29th August, they had released the car to the owner’s insurers for destruction. They did not tell their own expert, either, what the driver had alleged. The Gardaí later confirmed to Mr. Wall’s solicitor that they did not have the steering wheel examined for fingerprints.
Neither the Gardaí nor the prosecuting authorities have offered any explanation for whatever for these acts or omissions, even though there must be some explanation and that explanation is within their exclusive knowledge.
About two months after the Gardaí told Jason Wall of what the driver had alleged another passenger, Stephen Wall, made a statement confirming the driver’s allegation. He had previously said he did not know what had happened. Stephen Wall is not a man of good character having several convictions for robbery and burglary. He was serving a sentence in Mountjoy Jail when he made this statement in February of the following year. There is no explanation of how he came to make it.
The appellant, Jason Wall was charged in July of the year following the accident with two offences. These are discussed below: for the present it is sufficient to note that one of them carries a maximum sentence of fifteen years imprisonment.
It must be evident that to be tried on indictment on a charge carrying the maximum penalty of such terrifying proportions is more than distressing for a young man of good character. Even a much lesser sentence would carry every prospect of blighting his life and destroying his career. He is entitled not to be convicted except on clear and satisfactory evidence after a trial in due course of law. Such a trial involves, in my view, a proper investigation by the Gardaí in which all reasonable steps to gather relevant evidence have been taken. The appellant here complains that he has been deprived, by the unexplained failure of the Gardaí, in the hours and days immediately following the driver’s allegation to avail of the opportunity, to seek fingerprint evidence from the steering wheel. The results of such an examination of the wheel would have been either consistent or radically inconsistent with the driver’s allegation. It would thus involve a reasonable possibility of forensic evidence which would have supported either the prosecution or the defence. He also complains that, by permitting the destruction of the car eleven days after the driver’s allegation and without telling him of the allegation, they deprived him of the possibility of having the vehicle examined by an expert retained by him, for the fingerprints which the Gardaí had omitted to seek. On that basis he says his trial would not be a trial in due course of law and therefore seeks to prohibit it.
In the January following the fatal incident, that is about five months later, when the Gardaí were interviewing Jason Wall about the driver’s allegation, they asked him if he would voluntarily provide them with his fingerprints. This is only consistent with a belief on their part that a fingerprint examination would be useful in establishing, or in contradicting the driver’s allegation. Mr. Wall gave his fingerprints voluntarily. I think that any innocent person would have done so, in the belief that a fingerprint examination of the steering wheel he was alleged to have grasped would clear him. But there in truth was no prospect of such an examination because (apparently unknown to the Gardaí who asked Mr. Wall to provide his fingerprints) the car had long since been destroyed.
Fingerprint evidence is the oldest, and one of the most reliable, forms of forensic evidence. Some material illustrating its history and scope is set out at Appendix I to this judgment.
This case, like many others in recent decades about film or forensic evidence, raises a legal question which is easily formulated if much more difficult to answer. It is this:
Is it open to the Gardaí, equipped as they are with enormous statutory powers for the taking of fingerprints and other forensic samples, in a given case simply to ignore that possibility and to rely exclusively on evidence of a more traditional kind? Is it open to the Gardaí to confine their investigations and examinations to traditional forms of evidence which, they believe, will support the prosecution theory of a case and to decline the opportunity to seek more objective evidence which, however, may undermine the prosecution’s theory?
The Garda Síochána is, and has been since 1925, the sole police force in Ireland (see the Police Forces (Amalgamation) Act, 1925). In common with many modern police forces, it has been given enormous powers over persons and property in order to facilitate the investigation of crime. These include a common law power, judicially recognised since as long ago as 1887, to take possession of and retain items of property which have a bearing on the question of the guilt or innocence of a person charged with a criminal offence.
Developments in the field of technology and forensic science have cast this power in a new light. Nowadays, huge swathes of our cities and towns are the subject of surveillance by video cameras. These can be absolutely vital in the detection of crime, the conviction of the guilty and, just as important, the acquittal of the innocent. Forensic science has developed techniques of unimaginable sophistication, even by the standards of one or two decades ago, which can often demonstrate whether a particular person was in a particular place, or in physical contact with another person or thing, in very many cases. Even older techniques, such as fingerprinting, developed in France before the end of the 19th century, have been brought to a new and previously unimagined level of sophistication.
But these techniques are useless unless the police have first gathered and examined the relevant material. It is impossible to look for fingerprints on an item which has been lost or destroyed. It does not matter how good the footage from a video camera may be if it was never taken possession of, with the result that it has become lost, or decayed, or recorded over, or the Gardaí themselves have destroyed it or given it away.
It is of the utmost importance, therefore, that the Gardaí should find, gather, preserve and retain all such material, whether it favours, or is thought likely to favour, the theory of the prosecution in a particular case or not. Forensic science and technology must be a servant of justice, not merely of a policeman’s or a prosecutor’s theory of the case.
This may seem trite, but experience shows that it is essential to bear it in mind. All the classic miscarriage of justice cases from that of Captain Dreyfus in the 1890s to that of the Guilford Four resolved about a century later, and the Shortt case in still more recent years, turned in one degree or the other on the suppression of evidence. The same pattern can be seen in less notorious cases as well. In Braddish v. Director of Public Prosecutions [2001] 3 IR 127 the location where a robbery committed was covered by a video camera. An investigating garda viewed the video, but did not propose to use it for the purpose of a prosecution. He said that, while he could identify the defendant from the video, he preferred to rely on an alleged confession of the defendant made after he had been arrested, allegedly because the video identified him. The video itself was no longer available at the time it was sought, even though it had been in the possession of the Gardaí. In those circumstances the Court granted relief against further prosecution. In the course of doing so, the Court said, in relation to the duty of the Gardaí in such circumstances:
“It is the duty of the Gardaí, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence. That is so whether the prosecution proposes to rely on the evidence or not, and regardless of whether it assists the case the prosecution is advancing or not”. (Emphasis added)
This finding, although possibly obiter in the case of Braddish was subsequently adopted by the Court in Dunne v. DPP [2002] 2 IR 305.
There are two important observations to be made about that finding. The same judgment went on to say:
“… the duty to preserve and disclose it has to be interpreted in a fair and reasonable manner… a duty so qualified cannot be precisely or exhaustively defined in words of general application. Certainly, it cannot be interpreted as requiring the Gardaí to engage in disproportionate commitment of manpower or resources in an exhaustive search for every conceivable kind of evidence. The duty must be interpreted realistically on the facts of each case.”
Secondly, there is a distinction drawn in the cases on this subject between, on the one hand, evidence which was at one time undoubtedly in the possession of the Gardaí but was subsequently lost or destroyed by them, or given by them to someone else for the purpose of destruction, on the one hand and, on the other hand, evidence which was never in the possession of the Gardaí but which they might have come into their possession had they used reasonable diligence to find it. In the reported cases these two quite different kinds of evidence are distinguished by the use of language such as “a duty… to preserve and maintain all evidence which comes into their possession…” in relation to evidence of the first kind, and a duty “to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence…” on the other hand.
It is interesting and, on one view, significant, to bear in mind that in this case we are dealing with evidence of the first kind. The Gardaí had had in their possession an evidential item (the car and steering wheel) which (in my view) had a manifest bearing on the evidence of guilt and innocence. Nevertheless, they permitted this evidence to be destroyed by giving it to a person who wanted it for that purpose. At the time they did this, the Gardaí were aware of the very serious allegation against the present appellant but had not told him about it so that he himself could take no step to secure the evidence.
It is with considerable regret that I have to say that, in my view, the result of the present case represents a considerable diminution in the rights of defendants to have evidence which might prevent a wrongful conviction sought out, examined, and preserved. Since at least the decision of this Court in O’Connell v. Fawsitt [1986] IR 362, it has been the duty of the High Court, or this Court on appeal, to intervene where a criminal defendant “has been prejudiced in his chance of a fair trial on indictment”, and not simply a matter to be left to the trial judge. I regret that I must record my view that Mr. Wall, the defendant in the present case and the appellant in these proceedings, has been gravely prejudiced in his prospects of a fair trial.
I wish to record two judicial pronouncements with which I am wholly in agreement. The first of these is from the decision of Fennelly J. in his judgment in Dunne [2002] 2 IR 305 cited above. Speaking of two cases where evidence capable of giving rise to useful scientific or technical examination but later lost, is at issue, he said, (pp 342-343):
“All this takes place in the context of a possible trial and it is of the greatest importance that the Courts ensure that the police force behaves with impeccable fairness in its handling of evidence”.
A similar principle, it seems to me, was expressed by Justice Blackmun in the United States Supreme Court in Arizona v. Youngblood (1988) 488 US 51 when he said, at p.61:
“The Constitution requires that criminal defendants be provided with a fair trial, not merely a ‘good faith’ try at a fair trial. Respondent here, by what may have been nothing more than police ineptitude, was denied the opportunity to present a full defence. That ineptitude, however, deprived the respondent of his guaranteed right to due process of law”.
The Youngblood case is further discussed below. But I wish to assert my conviction that Justice Blackmun correctly stated the true principle of law which should apply to these cases in any State bound to observe due process of law.
It may not be entirely irrelevant to note that Youngblood was finally proved to be absolutely innocent, and the real perpetrator of the crime of which he was convicted was found, by enhanced forensic techniques. By then, however, Youngblood had spent nine years in a prison in Arizona, most of which he would have been spared had Justice Blackmun’s view prevailed.
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This is the appeal of the appellant from the judgment and order of the High Court (Mr. Justice O’Keeffe) of the 13th November, 2008, whereby Mr. Wall was refused the relief which he sought. This relief consisted of the prohibition of any further prosecution by the DPP on charges of reckless endangerment and secondly of the unlawful seizure of a vehicle.
These are significant offences. The offence of endangerment was created by s.13 of the Non-Fatal Offences Against the Person Act 1997. By reason of s.13(2)(b) of that Act, it carries a maximum sentence of seven years imprisonment. The second offence, that of the unlawful seizure of a vehicle, was created by s.10 of the Criminal Law (Jurisdiction) Act 1976. By reason of s.10(1) of that Act this offence carries a maximum sentence of fifteen years imprisonment.
It is therefore clear that each of these offences is a very significant one. Neither is a minor offence, either in the colloquial sense, or in the more technical sense of the term “minor” deriving from Article 38 of the Constitution.
Kernal issue.
The issue at the core of this case can be simply stated, although it will immediately be necessary to turn to the rather complicated individual facts out of which the kernel issue arises.
The appellant was a back seat passenger in a car which was involved in a fatal collision when it crossed to its incorrect side of the road and struck an oncoming vehicle. The driver of the car, a young lady on her first provisional licence, at first said that she did not know what had happened, that the car went out of control. A few days later, however, while being questioned under caution (see below) the driver claimed that the appellant had caused the accident by grasping the wheel of the car and turning it to the right.
It is common case that this allegation was not communicated to the appellant for many months after the accident. It was not communicated, either, to a garda expert who examined the car four days after the driver’s claim was made. No explanation has ever been given for the failure to inform either the appellant or the Garda Expert of the allegation made by the driver. Because of this omission, the expert did not think to have the steering wheel of the vehicle tested for fingerprints or other forensic evidence of whether or not the appellant had grasped it as alleged.
This matter of fingerprints was clearly relevant, and this is demonstrated by the fact that when, months later, the Gardaí did at last make the appellant aware of the allegation they asked him to provide them with his fingerprints, which he did on an entirely voluntary basis. By that time, however, unknown to the appellant (and apparently unknown to the Gardaí who sought the fingerprints) the vehicle in question had been released from garda custody and destroyed. This was done without the knowledge of the appellant or of some of the Gardaí. In those circumstances the appellant claims that it is contrary to the requirements of justice that the prosecution of these very serious charges should proceed, when the actions and omissions of the Gardaí have shut him out from a defence based on forensic examination.
Factual background.
The factual background to this case is an unusual one. On the 14th August 2005 the applicant, Mr. Wall, was a rear seat passenger in a Honda motor car driven by Ms. Lyndsey Hudson and owned by her father. Ms. Hudson was a young lady on her first provisional licence at the relevant time. There were four passengers in the car. Emma Wall was the front seat passenger; her brother Stephen Wall, Ciara Brack and the appellant were rear seat passengers.
The group in the Honda car spent the evening at a christening celebration in a local public house in Killiney, Co. Dublin. Ms. Hudson, however, said that she had only two alcoholic drinks over the night. She was not tested for alcohol. For reasons which are in dispute, the Honda motor car driven by Ms. Hudson veered unto the incorrect side of the road (Church Road, Killiney) and into a car driven by a Mr. Patrick Foley. His car was a Ford Mondeo.
Most unfortunately, Emma Wall, who was Ms. Hudson’s front seat passenger, died of injuries sustained in the collision.
In the immediate aftermath of the collision the driver, Ms. Hudson, said that she did not know what had caused the accident; that the car had gone out of control. Like the other occupants of the car she was removed to hospital and she was discharged the following day. Four days later on the 18th August 2005 Ms. Hudson was questioned by the Gardaí under caution. She then for the first time alleged that immediately before the accident the appellant had leaned forward, turned up the radio, and then grabbed the steering wheel and pushed it to the right thereby causing the accident.
This was in sharp contrast with what she had told an independent witness in the immediate aftermath of the accident, Mr. Patrick Byrne. To him she said:
“I don’t know what happened, the car went out of control.”
Of the surviving passengers in the car Ms. Ciara Brack remembers nothing between the beginning of the journey in the Honda and waking up in hospital.
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The other survivor of the party in the Honda, Stephen Wall, made two statements to the Gardaí on the same day, the 30th August 2005. In the first of these he stated that:
“I don’t remember anything from the night”.
In the second he appeared to have a reasonable memory of what had happened on the night but none of the accident. He said;
“I can remember lights coming towards us and snapping back out of it outside the car”.
However, in a third statement taken on the 7th February 2006, taken when he was imprisoned in Mountjoy Prison in connection with a different matter, he stated for the first time that the appellant “… reached for the steering wheel and he moved the wheel. I reckon he moved it with his right hand”.
It is this last statement, alone, which is contained in the Book of Evidence served on the defendant by the Gardaí.
In a letter of the 8th September 2006 the Office of the Director of Public Prosecutions sent the defendant’s solicitor a typewritten copy of Stephen Wall’s first statement which said, simply, “I don’t remember anything from the night”. This was described as one of a number of statements “which are in an amended form in the Book of Evidence”. It is difficult to understand this description of the statement just quoted in its entirety: it appears to be directly and completely contradicted by the statement which was in the Book of Evidence”. After a further letter of the 15th September 2006 from the defendant’s solicitor, the Gardaí sent on the original (handwritten) version of the statement just quoted together with the original handwritten notes of the interview of Stephen Wall in which he had said:
“I can remember lights coming towards us and snapping back out of it outside the car”.
Sequence of events after the crash.
It must be borne in mind, throughout this judgment, that Mr. Jason Wall, like Ms. Ciara Brack, and for a long time, Mr. Stephen Wall, has no recollection of the accident and the events leading up to it. But he resists the suggestion that he caused the accident by grabbing the steering wheel and moving it to the right. It occurred to him or his solicitor, as I think it would occur to anybody in his situation, and certainly to any lawyer consulted, that if in truth he grabbed the wheel as alleged, his fingerprints would be on it. Equally, if he turned the radio up, as alleged by Ms. Hudson, his fingerprints, one would have thought, should be on that dial.
However, it is of the greatest importance that the allegation which Ms. Hudson made for the first time some days after the accident was not communicated to Mr. Jason Wall by the Gardaí for many months. It seems of great significance that the Gardaí who communicated that allegation to him also asked him to give his fingerprints on a voluntary basis and he agreed to this. That request in that context seems manifestly to suggest a belief on the part of the Gardaí who made it either that the vehicle (in particular the steering wheel and the radio) was still available for testing or, alternatively, that the steering wheel and the radio control had already been examined for fingerprints.
In fact, however, neither of these things had been done. On the hearing of this appeal, counsel for the State was unable to suggest any other specific basis on which Mr. Wall’s fingerprints might have been requested.
It transpired in evidence that the car in question was taken away for destruction by a haulage company on behalf of the owner’s insurer on the 29th August 2005. It had been examined by a garda expert witness on the 23rd August 2005. He did not however examine the radio dial or the steering wheel for fingerprints, or have them examined. It seems clear from his report that the allegation made by Ms. Hudson for the first time on the 18th August 2005 was simply not communicated to him. I say this because he attributes the accident to Ms. Hudson’s failure to keep her car on its correct side of the road, which he would hardly have done (or done without further comment) if he had been aware that she alleged an intervening cause over which she had no control.
The salient feature of this sequence of events is that, by the time Ms. Hudson’s allegation was communicated to Mr. Jason Wall, the vehicle had been destroyed and there was no longer any prospect of fingerprint evidence being obtained.
In these proceedings, Mr. Wall complains strongly:
(a) That the Gardaí, once they became aware of Ms. Hudson’s allegation against Mr. Wall should have examined the radio dial and the steering wheel of the car (being the two parts of the car Mr. Wall allegedly touched when he reached forward) for fingerprints to see if Mr. Wall’s fingerprints were on either item.
(b) Further or in the alternative he complains that the Gardaí should not have released the car to be towed away to be crushed before Mr. Wall had been told of the allegation against him and enabled to take advice and to take such steps as he might have been advised to develop forensic evidence from the car before it was irretrievably destroyed.
“The Gardaí”.
From the point of view of a defendant in criminal proceedings, those opposed to him are the forces of the State, the Gardaí and the Public Prosecutor’s Office and counsel retained by them, compendiously. But it is fair to say that in this case the phrase “the Gardaí” does not extend to every individual member of the force who dealt with the case in one way or another. For example, Sergeant Colm P. Finn is a trained forensic collision investigator. He examined the Honda car involved in the accident on the 23rd August 2005 in a yard in Blackrock. He reached the conclusion noted above as to the cause of the accident. But it appears from his statement that he had not been furnished with the statement of Ms. Hudson, or told of the dramatic allegation she had made. For the reasons given above, it appears that he did not know that she claimed that the accident had been caused by Mr. Wall’s intervention. He can thus hardly be blamed for failing to examine the relevant parts of the car for fingerprints or to have them so examined. Thus, although “the Gardaí” undoubtedly knew what Ms. Hudson was alleging well before the destruction of the car, and well before Sergeant Finn’s examination of it, he himself did not know, and had no reason to believe, that the driver of the car was alleging that she had been deprived of control of the vehicle by the intervention of a third party. He thus had no reason to consider whether, in fairness to that third party, the steering wheel and radio dial of the car ought to be examined for his fingerprints.
Equally, the Guard in charge of the investigation of the offence and who eventually made Mr. Jason Wall aware of Ms. Hudson’s allegation on the 26th January, 2006, five months and one week after it had been made, thought it proper and reasonable to seek permission from Mr. Wall to take his fingerprints for the purpose of the investigation. As noted above, the making of this request necessarily suggests a belief either that there were fingerprints with which Mr. Wall’s could be compared, or that such fingerprint could be obtained.
The action of the investigating Gardaí in requesting Mr. Wall’s fingerprints for the purpose of the investigation is important because it suggests a belief on their part that there was a possibility of the use of fingerprint evidence to establish, one way or another, the plausibility of Ms. Hudson’s allegation. But there is no reason to believe that those Gardaí knew that, at that time they asked Mr. Wall to provide his fingerprints, the vehicle had already been destroyed without any fingerprint examination, so that his voluntary giving of his fingerprints could not affect the investigation at all.
The form which Mr. Wall signed giving his consent to the taking of his fingerprints and palm prints is exhibit No. 5 in the Book of Evidence. The date on it, which was placed there in handwriting by a garda, is not entirely easy to read but is clearly either the 25th or the 26th January, 2006. This was approximately five and a half months after the accident.
Other relevant aspects of the case.
There are a number of other aspects of the case which seem to me relevant, as follows:
A statement under caution.
We have already seen that Ms. Hudson first made her allegation which leads to the charges against Mr. Jason Wall on the 18th August, 2005.
It may be material that Ms. Hudson made this statement under caution that is after having been cautioned by the Gardaí:
“You are not obliged to say anything unless you wish to do so but anything you do say will be taken down in writing and may be given in evidence”.
It is clear from this circumstance that Ms. Hudson was aware, by the time she made the allegation against Mr. Wall, of the prospect of proceedings against her arising out of the accident. There is no way, except in the context of criminal proceedings against her, in which her statement taken under this form of caution could be proved in evidence.
The caution set out above, and still more its transatlantic equivalent, is familiar to many millions of television viewers. The circumstances in which it must be administered should be borne in mind. It derives from the first nine “Judges Rules” which were in place since before 1922 to clarify the circumstances in which police officers can question a person and, in particular as to when a caution is required (see, in general, McGrath, Evidence (Thompson Round Hall, 2005) p.411. The first rule deals with the general position and is as follows:
“(1) When a police officer is endeavouring to discover the author of a crime there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not, from whom he thinks that useful information may be obtained”.
This position changes, however, once a garda has made up his mind to charge a person with a crime. In that situation:
“(2) Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking him any questions, or any further questions, as the case may be”. (Emphasis added)
The balance of the Rules in force in Ireland relate to the questioning of a person in custody. There is no reason to believe that Ms. Hudson was arrested or was in custody at the time she was cautioned.
Any newspaper reader will now be aware that a charge of causing death by dangerous driving is one of the few offences not requiring specific intent in which a person of good character is likely to receive a substantial prison sentence for a first offence, especially if the circumstances are aggravated by drink or speed. It was in this context that the allegation against Mr. Wall was first made.
Position of persons in the car.
It seems essential to the prosecution case against Mr. Jason Wall that he was positioned in the middle of the back seat of the car enabling him to reach forward and touch first the radio and the steering wheel, according to Ms. Hudson.
In the statement referred to, Ms. Hudson described the positioning of the persons in the car as follows:
“Emma [Wall] was sitting in the front passenger seat. Ciara [Brack] was behind me. Jason was in the middle in the back and Stephen was behind Emma”.
Turning to the actions she then for the first time alleged against Jason Wall she said:
“... Jason leaned through the two front seats. He turned up the radio. I think I said ‘what are you doing?’. He didn’t answer. He suddenly grabbed the steering wheel and pushed it to the right, to the other side of the road”.
In the immediate aftermath of the accident, according to Garda Keogan, Stephen Wall spoke to him on the scene and:
“He [Stephen] told me he had been sitting in the rear of the Honda Civic in the middle”.
The Guard observed that “he was dazed and confused and had a cut to his head.”
In Stephen Wall’s statement taken on the 30th August, 2005 he described the position of persons in the car as follows:
“There was [Lyndsey] the driver, my sister Emma Wall in the passenger seat. I was in the back in the middle. Ciara Brack was on my right behind the driver and Jason Wall was on my left behind the passenger”. (Emphasis added)
According to Ciara Brack:
“… from what I can remember Lyndsey was driving, Emma Wall was in the passenger seat, I was behind Lyndsey in the back, Stephen Wall was in the middle and Jason Wall was on the far side behind Emma”. (Emphasis added)
While Ms. Hudson describes Jason as “leaning through the two front seats”, Stephen Wall says that he (Jason) “leaned over the passenger chair”. He does not allege that he interfered with the radio.
Date of charge and associated events.
The appellant was not charged with these offences until July 2006. He was returned for trial on the 8th September, and was then served with the Book of Evidence.
Six days later, on the 14th September 2006, the appellant’s solicitor wrote to the prosecution’s solicitor saying, amongst other things:
“Please note that the defence rely on the prosecuting authority to ensure that full enquiries are made in relation the availability of any evidential sources such as video recordings and any physical evidence that exists is obtained in order that these categories of evidence may be available for inspection by the defence.”
Subsequently, on the 21st December, 2006, the defence solicitor sought:
“Copy of fingerprint analysis carried on the steering wheel of the car driven by Lyndsey Hudson in which Jason Wall was a passenger and/or documentation relating to the taking of fingerprints.”
After a number of email reminders this request was repeated on the 23rd January, 2007. The solicitor asked on that occasion whether the car was available for inspection.
On the 20th February, 2007, the defence solicitor was informed for the first time that:
“No fingerprint analysis was taken from the steering wheel”.
In response to this on the 6th March, 2007 the defence solicitor said, amongst other things:
“We note with surprise and concern that no fingerprint analysis at the steering wheel was carried out in the course of the investigation of this matter. The allegation against Mr. Wall, namely that he pulled the steering wheel of the car, was known to the investigating Gardaí within at most four days of the incident. It must have been absolutely clear to them that the presence or absence of Mr. Wall’s fingerprints on the steering wheel had the potential to be a highly material and probative piece of evidence. We note that in our letter to you of the 23rd January last and earlier correspondence we asked for a copy of the fingerprint analysis carried out and all documentation relating to the question of taking fingerprints. In your letter of the 20th February you simply say that no fingerprint analysis was taken. This also appears to indicate that there is no documentation relation to the taking of fingerprints. We would ask you to note that we have the clearest instructions from Jason Wall that he did not grab pull or in any way interfere with the steering wheel of the car on the night in question… we have advised him that the failure of the gardai to carry out basic elementary fingerprint analysis of the steering wheel appears on the face of it capable of significantly impairing his ability to defend himself and to significantly breach his entitlement to fair procedures during the course of the trial.”
The solicitor went on to request an explanation for the failure to fingerprint the car, which has not been forthcoming to this day.
Applicable Law.
The topic of missing evidence or unobtained evidence has been the subject of a considerable number of decisions of the Superior Courts. The modern authorities on the issue date from the decision of Mr. Justice Lynch in Murphy v. Director of Public Prosecutions [1989] ILRM 71. In what follows, I propose to refer only to what is directly relevant.
In Savage v. Director of Public Prosecutions [2009] 1 IR 185, Fennelly J. summarised the modern law as follows:
“(a) It is the duty of the prosecution authorities, in particular An Garda Síochána, to preserve and maintain all evidence which comes into their possession as having a bearing or potential bearing on the issue of guilt or innocence of the accused. This duty flows from their unique investigative role as a police force (see Braddish v. Director of Public Prosecutions [2001] 3 IR 127). The extent of which that duty extends to seeking out evidential material not in the possession of the Gardaí does not arise in the present case (but see Dunne v. Director of Public Prosecutions [2002] 2 IR 305).
(b) The missing evidence in question must be such as to give rise to a real possibility that, in its absence, the accused will be unable to advance a point material to his defence, this is, like the garda obligation to retain and preserve evidence, to be interpreted in a practical and realistic way and ‘no remote, theoretical or fanciful possibility will lead to the prohibition of a trial’ (see Dunne, above).
(c) The fact that the prosecution intends to rely on evidence independent of the missing evidence at issue in order to establish the guilt of the accused does not preclude the making of an order of prohibition. In Dunne [above] the prosecution intended to rely on a confession. This did not defeat the applicant’s complaint of the failure of the Gardaí to take possession of the video tape covering the scene of the robbery.”
In giving the judgment of the Court in Braddish, I said, at p. 133:
“It is the duty of the Gardaí, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence. This is so whether the prosecution proposes to rely on the evidence or not, and regardless of whether it assists the case the prosecution is advancing or not… it important to bear in mind that the evidential items to which the foregoing applies are not only those with a directed established evidential significance but include those which in the words of Lynch J. in Murphy v. DPP [1989] ILRM 71, at 76, ‘may give rise to the reasonable possibility of securing relevant evidence’.”
The passage goes on to adopt, in the context of the criminal case, the standards applicable to civil discovery as laid down in Sterling- Wintrope Group Ltd. v. Farben-Fabriken Bayer AG [1967] IR 97.
Forensic evidence.
All of the foregoing applies with particular force to forensic evidence. In Dunne v. DPP [2002] 2 IR 305 I said:
“We are long habituated to the idea that technology and science can snare the criminal. From the familiar photograph and fingerprint to the microscopic fragment of hair or tissue, the role of their products in detection and the proof of guilt has entered into the public consciousness. The work of the criminalist, the SOCO, chemist, the photographer, above all the DNA expert, are firmly established. The law itself has changed to accommodate them. A suspect may be fingerprinted, photographed, compelled to give up his clothing and possessions for testing and to supply samples of his hair, tissue or bodily fluids under a variety of statutes. Apart from specific powers, the essential criteria for such testing is set out in the Criminal Justice (Forensic Evidence) Act, 1990, in Section 2(5)(b) that there is reasonable ground for believing that
‘the sample will tend to confirm or disprove the involvement of the person from whom the sample is to be taken in the …….. offence’.
See also the Road Traffic Act 1994 Sections 12 - 15, the Measuring and Photography of Prisoners
Regulations 1955, (made under the Penal Servitude Act 1981), Criminal Justice Act 1984 Sections 4,6, and 28, Criminal Evidence Act 1992 Section 16, Criminal Justice Act, 1997 Sections 7, 11, 12, 19, the Health Safety and Welfare Act, 1989 Section 34.
None of this is controversial. If science or technology can provide certainty in matters of great importance which would otherwise be determined on human testimony which may be fallible or worse, who but a guilty man would not willingly invoke its aid? On this theory both individuals on whom suspicion has fallen (mandatorily) and whole populations (voluntarily) have been submitted to scientific and technological tests. The balance has long been struck in favour of the use of technology in the search for the perpetrators of crime, even when the processes involved are minimally invasive or transiently painful or undignified for innocent people. The greater good prevails.
This development is due in large measure to the development of techniques of previously unimagined sophistication, from the telephoto lens and the video camera to the extraordinary precision of DNA analysis. Additionally, and at much the same time, our faith in some older techniques has been undermined. From visual identification to alleged confessions, the last three decades have provided excellent reason for avoiding over reliance on them.”
Dunne was a case where a robbery had taken place in a premises undoubtedly equipped with a video camera. There was simply no evidence as to whether the Gardaí had ever sought or obtained the tape from the video camera. Commenting on this, the judgment continued:
“This case does not challenge any of these [above mentioned] developments. It seeks to take them further. It raises the question, is it open to the authorities on whom such wide powers and resources have been conferred by law or by technology, to decide in a particular case, that they will not use them? Alternatively, if for no stated reason the authorities simply do not avail of some technical assistance in the detection of crime, which might have inculpated or exculpated the suspect, is this relevant to their ability to prosecute him using evidence of a more traditional sort?”
Fingerprints.
The Dunne case was about video footage, an obviously directly relevant sort of evidence, once it was established that the location of the crime covered by a video camera. Much of the balance of the judgment in Dunne relates specifically to video evidence.
Fingerprint evidence, the technology of which goes back to the latter part of the 19th century is perhaps the oldest and best established sort of forensic evidence. Its significance was considered by the Superior Courts in Murphy v. DPP [1989] ILRM 71.
In Murphy, the applicant was charged with being the driver of a stolen car which was wrecked in a collision. He denied this, though he admitted being a passenger in the car. The Gardaí did not carry out any fingerprint examination on their own behalf and intended to rely solely on Garda visual identification. When the applicant’s solicitor sought to get access to the car for the purpose of his own forensic examination he was informed by the Gardaí that the car (as in the present case) had been given to an insurance company and destroyed.
The applicant therefore sought to restrain his prosecution.
On these facts, Lynch J. restrained further prosecution of the applicant holding:
(1) “Evidence relevant to guilt or innocence must, so far as is necessary and practicable, be kept until the conclusion of the trial. This principle also applies to the preservation of Articles which may give rise to the reasonable possibility of securing relevant evidence.”
In this regard the learned judge followed Dillon v. Byrne and Davies [1887] 20 LR 300.
(2) “An accused person must be afforded every reasonable opportunity to inspect all material evidence which is under the control and power of the prosecuting authorities in order adequately to prepare his defence”.
(3) “The Gardaí ought not to have parted with possession of the car without examining it forensically or alternatively they should have notified the applicant’s legal representatives of their intention of giving it back to the insurance company”.
(4) “The Gardaí’s actions in the circumstances amounted to a breach of the rules of fair procedures in that they deprived the applicant of the reasonable possibility of rebutting the evidence against him”.
(Emphasis added)
In this connection the learned trial judge applied State (Healy) v. Donoghue [1976] IR 300.
In the course of the judgment, Mr. Justice Lynch held:
“Nevertheless, the Gardaí’s action in the circumstances amount to a breach of the rule of fair procedures. The applicant has accepted that he was in the stolen car unlawfully when it crashed, but he has denied driving it. The Court of trial will now only have evidence of garda visual identification and the applicant’s denial upon which to base its decision. It has in effect been deprived of possible corroborative evidence of the applicant’s denial. Consequently, I am satisfied that the applicant’s opportunities of defending his case have been materially effected to his detrement”.
I may say that all of the learned judge’s observations about that case in the paragraph just quoted appear to me to apply to the present case as well.
Lynch J. continued:
“The authorities establish that evidence relevant to guilt or innocence must so far as is necessary and practicable be kept until the conclusion of the trial. These authorities also apply to the preservation of articles which may give rise to the reasonable possibility of securing relevant evidence.”
It appears to me that Murphy is a case of great importance in the present circumstances. Like this case, it was about a failure either to examine a motor vehicle for fingerprints or to permit the defendant to do so in good time. It will be seen from the last citation in particular that it appeared axiomatic to Mr. Justice Lynch that examining the vehicle for fingerprints would lead to a “reasonable possibility of securing relevant evidence”. If that were so in that case, it is equally so here. Indeed, having regard to the notorious and very long established prospects of obtaining inculpatory or exculpatory evidence from fingerprint examination, it seems to me axiomatic that it should have taken place once the driver’s allegation that the collision was not her fault but was caused by the defendant’s action in grabbing the steering wheel and manipulating it became known. But it did not take place because the Gardaí, quite apart from not telling the appellant, against whom the allegation was made, did not even tell their own Garda Collision Expert, who examined the car five days later, in complete ignorance of what Ms. Hudson had alleged.
Fingerprints: the State’s response.
The State argued that:
“… it has not been established on the evidence that a forensic examination of the car for fingerprints… gave rise to a ‘reasonable possibility of securing relevant evidence’. (Braddish). The difference between this case and the Murphy case (where fingerprints were also an issue) is that in Murphy the vehicle was a stolen vehicle where it was alleged that the accused drove the vehicle. The only evidence was visual identification.”
It is omitted from this summary that the defendant in Murphy admitted to being a passenger unlawfully in the vehicle, but disputed that he was the driver.
The prosecution continued:
“The only evidence was visual identification. Given that the vehicle was stolen, the presence of the accused’s fingerprints on the steering wheel would have a materiality which it does not have in this case where the appellant was in the car on a daily basis over a very protracted period and had sat in the driver’s seat”.
It is certainly true that the appellant had been going out with Lyndsey Hudson for about a year before the accident therefore had often been in her father’s car, which she seems to have driven a good deal. It is true, and is agreed, that he had never driven the car but Ms. Hudson claimed that on a number of occasions he sat in the driver’s seat.
The prosecution go on to cite from my judgment in
McFarlane v. DPP [2008] 4 IR 117, where it is said that:
“In order to demonstrate that risk [i.e., the risk of an unfair trial] there is obviously a need for an appellant to engage in a specific way with the evidence actually available so as to make the risk apparent”.
The prosecution denied that the appellant has done so in the present case. The prosecution, however, has itself wholly failed to engage with the question of why the car was destroyed before telling Mr. Wall of the driver’s allegation.
The prosecution considerably emphasised the connection between the appellant and Lyndsey Hudson and the fact that, as a result of it, he had often been in the car.
It appears to me that that circumstance would make it unremarkable that his presence in the car might leave traces in the form of fingerprints or otherwise. But the absence of his fingerprints or other forensic traces on the radio dial and, still more relevantly, on the steering wheel might be very significant evidence with which to contradict the allegations against him, which are contained solely in the evidence of Lyndsey Hudson and (very belatedly) by Stephen Wall. The relevant evidence of the former was provided for the first time some days, and of the latter some months, after the fatal accident. In each case the witnesses’ allegedly incriminating version followed an earlier and inconsistent version of events.
It is not incumbent on the appellant to establish to a mathematical certainty that the missing evidence in the case would definitively establish his innocence. If that were the criterion for relief in a case such as the present, then it could never be met because by definition the missing evidence is not available. That is why the case is to be decided in terms of the “reasonable possibility of securing relevant evidence”, as Lynch J. put it in Murphy.
The prosecution further say that it is “possible” that the steering wheel (they made no reference to the radio dial) “might” be of a material which would not “take” fingerprints. This point seems utterly lacking in reality. The appellant referred the Court to the transcript of the proceedings in this case before the Circuit Court. There it is recorded that, as long ago as 2007, counsel for the prosecution told the learned circuit judge, before whom the criminal case came, that the Gardaí were in the process of testing a car of identical make and model to see if the steering wheel would “take” fingerprints. Nothing has been heard of the result of these tests, carried out some six years ago, and counsel for the State was not able to put the matter further even on the hearing of this appeal. The State Solicitor had no instructions on the point. It therefore appears, on the basis of what State counsel said, that the Gardaí are affirmatively aware of whether or not the steering wheel would “take” fingerprints. They have not shared this information with the State solicitor or with the Court. If the result of the tests they carried out supported the view that the steering wheel could be grasped and turned without leaving fingerprints, it is inconceivable that that evidence would not have been deployed, in the High Court or on this Appeal. Their silence speaks volumes on this point.
It appears to me that it has been clearly established that the appellant has lost the real possibility of developing evidence to rebut the allegations of Lyndsey Hudson and Stephen Wall, which is the only evidence against him on these serious charges. The action of the Gardaí themselves in asking the appellant to provide them voluntarily with his fingerprints seems to me to establish that, in their view, at that time, a fingerprint comparison might have been useful to the investigation. The test which the prosecution told the learned circuit judge that the Gardaí were carrying out on the steering wheel of a car of identical make and model seems to me to confirm that, even if the test itself were never carried out, or the results for some reason withheld. There is no third possibility.
There is no doubt that, had Jason Wall been charged with these offences before the vehicle was destroyed, he would have been entitled to examine it or (more likely) to have it professionally examined on his behalf. This is so because, on the authority of Murphy cited above, there is a reasonable prospect that such examination could yield material useful to the defence. It arises from the State’s own allegation that Mr. Wall grasped and turned the steering wheel with his bare hand.
It is possible that Mr. Wall would have been entitled to have the car examined before he was charged, after he had been told of the allegation that the driver was making against him. He would surely have been able at that stage to prevent the car being destroyed without such an examination. But the car had already been destroyed, months before he was told anything at all by the Gardaí, or was aware of any reason to examine the vehicle or its steering wheel. This circumstance stymied any prospect of forensic examination by the Defence.
The request by the Gardaí for Mr. Wall to provide his fingerprints on a voluntary basis, made after they had told him of the driver’s allegation, demonstrates their view that a fingerprint examination of the car had a reasonable prospect of assisting justice in the circumstances of the case. This request was made, it appears, between five and six months after the driver had made her allegation. This, in turn, seems to suggest that the Gardaí who made the request were unaware that the vehicle had been destroyed. They would hardly have concealed that information from the man whose prints they were seeking on a voluntary basis, if they themselves knew it.
If the above propositions are accepted, it appears to follow that Mr. Wall has been deprived of a legitimate measure of defence, and one which offered a reasonable prospect of helping his defence, (that is how the test is formulated in Murphy), by reason of the fact that the car was destroyed before the driver’s allegation was communicated to him by the Gardaí.
That is plainly a state of affairs for which Mr. Wall can bear no responsibility. The Gardaí have offered no explanation of any kind for it and I am at a loss to think of one, even on a speculative basis. We do not even know who released the car for destruction. The Gardaí know this but they have not shared the information.
It appears to me, therefore, that Mr. Wall has suffered the loss of a reasonable prospect of evidence which would favour his defence. There is ample authority for the proposition that that entitles an applicant to relief. I would therefore grant the relief sought.
The United States authorities.
Because we were not referred to these authorities I have not in any way grounded my conclusion on them. I agree with O’Donnell J. that the U.S. and other jurisdictions’ law on this topic may be useful to examine. As he elegantly puts it:
“… the Irish jurisprudence in this area and others, can benefit from a careful analysis of the law of other jurisdictions, and not least the lucid and penetrating analysis often to be found in the jurisprudence of the Supreme Court of the United States.”
I would add only that the decisions of other Courts in the United States are often persuasive as well and that the vast size of that jurisdiction throws up factual situations which may take longer to come to attention in a smaller jurisdiction like ours. In particular, the appalling consequences, in two specific cases, of the prosecution action in losing or concealing evidence, is salutary to record. Because these materials were not argued or presented before us, I have set them out in Appendix II.
Another view.
In the course of reaching the contrary conclusion to that proposed by me, the Murphy case is sought to be distinguished on the basis that the present case, unlike Murphy is not a case where the Gardaí were directly on notice of any requirement for a forensic fingerprint examination within days of the event giving rise to the prosecution, and also on the basis that, unlike Murphy, the present is not a case where the guards disposed of or allowed the destruction of the car knowing that a request for forensic examination had been made by the appellant’s solicitor.
I am disturbed that Murphy is sought to be distinguished in this way. It is perfectly true in the present case no request for a forensic fingerprint examination was made within days of the crash, and equally true that the guards had not been told of the need for a forensic examination of the car before its destruction. But neither Mr. Jason Wall nor his solicitor could have done either of these things before the car was destroyed for the simple reason that the Gardaí had not told them that there was any allegation whatever against Jason Wall before they permitted the car to be destroyed. Accordingly, the matters mentioned are, par excellence, distinctions which do not amount to a difference from the ratio of Murphy. Because of the failure to make him aware of the driver’s allegation, it is obvious that Mr. Wall was never, at any time before the car was disposed of, in a position to arrange that the Gardaí were put on notice of the requirement for a forensic examination. By the time Mr. Wall was told of the allegation, the car was lost and gone for ever.
I am frankly astonished that his inability to demand a fingerprint examination, which inability was caused by the Gardaí themselves, should be used as a reason for denying him relief. I consider this to be a classic catch-22. I consider that it risks grave unfairness to the appellant to reason thus, or to distinguish Murphy on that basis.
In Murphy v. DPP [1989] ILRM, Lynch J. held:
“The Gardaí ought not to have parted with possession of the car without examining it forensically or alternatively they should have notified the applicant’s legal representatives of their intention of giving it back to the insurance company”.
In my view, this finding makes it impossible to distinguish Murphy as my colleague seeks to do on the basis that in that case the car had been disposed of while a positive request for the examination of the vehicle was outstanding, having been made by the defendant’s solicitor.
At the risking of stressing the obvious, I repeat that that position could not have been replicated in the present case by reason of the Gardaí’s action in making the car available for destruction without telling either the appellant, or their own Garda Collision Expert, of the allegation made by the driver. But the finding quoted above makes it clear that even without such a request (which the Gardaí themselves prevented from being made) they “ought not to have parted with the car without examining it forensically or alternatively they should have notified the applicant’s legal representatives of their intention of giving it back to the insurance company”.
By reason of these two failures, again in the words of Lynch J.:
“The Gardaís’ actions in the circumstances amounted to a breach of the rules of fair procedures in that they deprived the applicant of the reasonable possibility of rebutting the case against him”.
___________________________________________________________
Later, the question is raised “what was the position in the investigation here at the end of September 2005?”. This question is answered as follows:
“The Gardaí had not received any request for fingerprint tests on the steering wheel. There were two inconsistent statements from the driver of the car, the first claiming she did not know what happened, the second, blaming the applicant. The forensic test reports lay the blame for the accident squarely on the driver. There is no evidence that the Gardaí, then, placed substantial credence in Lyndsey Hudson’s uncorroborated allegation, which, on its face, might appear an unusual explanation for what happened. The evidence from the other passengers was, at that point, inconclusive; but none of them blamed the appellant. Obviously, the investigation subsequently evolved. The Gardaí clearly came to the view that the appellant should be interviewed. There is no evidence as to when they came to that view. Then later again, Stephen Wall’s statement emerged. But, by then, the car had long since been disposed of. To my mind, to impose a duty to obtain evidence to support a retrospective hypothesis that the appellant’s fingerprints might not have been on the steering wheel is unrealistic. It is not a reasonable identification of the duty of the Gardaí at the relevant time, that is, before the end of September, 2005. The possibility of there being such relevant evidence is raised in this appeal, but no more.”
To my mind, this analysis can only be described as extraordinarily indulgent of the garda position. It is of course true that there is no evidence about when the Gardaí decided to interview the appellant. That is a fact within the exclusive knowledge of the Gardaí and they have elected to withhold it from the Court. The omission to request fingerprint examination of the steering wheel was directly caused by the Garda action of parting with the car before telling Mr. Wall what had been alleged. They did not tell their own expert either. They have given no explanation of either failure. I do not know why emphasis is placed on the position at the end of September 2005 when the fact is that the Gardaí parted with possession of the car on the 29th August, 2005, eleven days after Lyndsey Hudson made her allegation against Jason Wall. We do not know who, specifically, gave the car away and therefore do not know what reasons, specifically, he or she had for doing so. There is no explanation as to why the Gardaí parted with possession of the car without communicating the fact of the allegation to Sergeant Finn, the forensic collision investigator who was going to examine it or to Jason Wall himself. That is also within the Gardaí’s exclusive knowledge and they have likewise seen fit to withhold it from the Court.
The same judgment says:
“There is no evidence that the Gardaí, then, placed substantial credence in Lyndsey Hudson’s uncorroborated allegation, which, on its face, might appear an unusual explanation for what happened”.
Once again, the Gardaí have elected to say nothing at all as to what degree of credence they placed on Lyndsey Hudson’s allegation. But it must be borne in mind that this was not a trivial case: it was an investigation into a road traffic event in which a young woman lost her life. The case looked black against Lyndsey Hudson: the collision had occurred on her incorrect side of the road. The Garda collision investigator blamed her for the crash. She had stated that she could not say how her car came to be on the incorrect side road. That, no doubt, is why she was interviewed under caution. The law on the need to caution a person being questioned has been set out above, so far as relevant. She then, for the first time, made the allegation that Jason Wall had deprived her of control of the car by grabbing the steering wheel and turning it to the right. This was plainly an allegation of a very serious kind and has led to Mr. Wall being charged with an offence with a maximum penalty of fifteen years imprisonment. Having heard what she alleged, the Gardaí did not charge Ms. Hudson, though the caution suggests they had previously made up their minds to do so. This is consistent only with their placing significant importance on the allegation she made, exculpating herself by inculpating Jason Wall.
Most important of all, there is, with great respect, nothing even remotely “retrospective” about the hypothesis that the appellant’s fingerprints might, or might not, be on the steering wheel. It is common sense that there was, at all times since Ms. Hudson’s allegation of 18 August 2005, an obvious possibility of the fingerprints being there, and an obvious significance to be attached to the possibility of the fingerprints not being on there. In Murphy, in the absence of any expert evidence, Mr. Justice Lynch held that the failure to examine a steering wheel for the fingerprints of the accused, he being alleged to have driven the car, deprived him of a reasonable possibility of making a specific defence. I would do so in this case as well.
I must express my grave apprehension that a refusal of relief in this case would represent a diminution in the rights of citizens in cases featuring lost or missing evidence, and a very marked coarsening of the standards which the Court applies to applications of this kind.
The existing jurisprudence is not of recent origin has its roots as far back as the 1880s. It represents in my view the minimum requirements of a trial in due course of law which is required by the Constitution. The modern cases dated from the 1980s. Many of the earlier cases in this sequence deal with delay, and sometimes gross delay. But these cases overlap with case of lost or missing evidence, since a feature of delay frequently is that it makes evidence unobtainable, and permits witnesses to die or disappear.
In The State (O’Connell) v. Fawsitt [1986] IR 362, a delay case, where the prosecution with charge of assault was restrained after a delay of four years, Finlay C.J. laid down the following test:
“I am satisfied that if a person’s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then the appropriate remedy by which the constitutional rights of such a person can be defended and protected is by an order of prohibition”.
To a similar effect is the statement of Denham J. (as she then was) in B v. Director of Public Prosecutions [1997] 3 IR 140:
“The community’s right to have offences prosecuted is not absolute but is to be exercised constitutionally, with due process, if there is a real risk that the applicant would not receive a fair trial then, on the balance of these constitutional rights, the applicant’s right would prevail”.
In Dunne v. DPP [2002] 2 IR 305 the Director relied upon the English case of R. (Ebrahim) v. Feltham Magistrates Court [2001]
1 WLR 1293. In the United Kingdom, applications of this sort are made, not to the High Court but to the trial court which is invited to stay the trial in the exercise of its inherent jurisdiction. In this jurisdiction, however, on the authority of O’Connell v. Fawsitt, cited above, the correct procedure is to apply to the High Court for an order of prohibition.
Ebrahim is also authority for the proposition, well established in English case law, that the onus on a person seeking to stay his trial in that country is to establish “that the defendant cannot receive a fair trial”. This is clearly a much higher standard than that expressed in the two Irish judgments cited above which lay down a test of showing that there has been prejudice to the defendant’s chance of obtaining a fair trial or, in the words of Denham C.J., that there is “a real risk that the applicant would not receive a fair trial”.
The case of PO’C v. DPP [2000] 3 IR 87 was a case of exactly the sort mentioned above. That is to say it was a delay case in which, during the course of the very prolonged delay in making a complaint, certain evidence of manifest importance to the defence became unavailable. In that case, the prosecution contended against the application of the “real risk” test and contended that the applicant should instead have to show “something overwhelming” before he could obtain relief. The prosecution also said that any prejudice he suffered could be mitigated by an appropriate charge to the jury. I would repeat the passage at p.115 of the report in that case in which these two submissions were addressed:
“If the case is to be tried at all, it must be tried on the evidence actually available and not on what the evidence might have been many years earlier. But the prejudice of which the accused complains relates precisely to the distinction between the two. If there is a real risk that he is prejudiced by this difference there is, I believe, a real risk of an unfair trial. The very fact that some specific evidence might reasonably have been available and useful to the defence is the most that can possibly be shown and it is this fact that demonstrates the fatuity of requiring ‘something overwhelming’ as the respondent suggests. Furthermore, the legal and practical impossibility of inviting a jury to speculate as to what the evidence might have been eighteen years or so ago points to the absolute necessity for this court to deal with the issue. This is particularly so because of the grave difficulty… in devising any useful form of words, suitable for addressing a jury, as to how lapse of time should be taken into account in their deliberations. And even if a case of this sort were being dealt with by a judge alone, how is he or she to consider a lapse of time? Would it be proper to acquit on the basis that the trial judge was not confident that the defendant would have had no better defence if the trial had been held fifteen years or so previously”.
I emphasise that that case, like many of those cited, was a delay case in which the fact that evidence was missing was an incident of the delay. In the present case, was no gross delay in the sense that features in many of the cases. The chronology shows an accident on the 14th August; the questioning under caution of Ms. Hudson on the 18th August, at which time she made the allegation against Mr. Wall; the forensic examination of the car on the 23rd August, by a garda expert who was not told of Ms. Hudson’s allegation; and the release of the car to be crushed on the 29th August. All of these things took place without notifying the present appellant of the allegation made against him.
The appellant was eventually charged in July of the following year, but the action of the Gardaí in releasing the vehicle for destruction means that the evidence is as irretrievable as if the charges have been brought eleven years, rather than eleven months after the event. In fact, for unexplained reasons, the Gardaí had ensured that the evidence was rendered forever unavailable eleven days after Ms. Hudson’s allegation.
I am quite clear that the destruction of the car has prejudiced Mr. Wall’s chance of obtaining a fair trial, as in Chief Justice Finlay’s formulation of the test, and has meant that there is “a real risk that [Mr. Wall] would not receive a fair trial”, as Chief Justice Denham puts it. If anyone doubts the truth of these statements, I would invite them to consider a trial in which it is demonstrated that the steering wheel would “take” fingerprints but that the appellant’s prints are not on it. Contrast that with a trial at which the appellant is confronted with the evidence of Lyndsey Hudson and Stephen Wall and has no prospect of forensic contradiction. I would consider such a trial grossly unfair, with a real risk of a grave miscarriage of justice.
My colleague Mr. Justice MacMenamin quotes with approval the words of Kearns J. in Scully v. Director of Public Prosecutions [2003] IEHC 92 and speaks of them as creating a “margin of appreciation” for the Gardaí. I would not myself use that phrase, but I agree with the citation from the judgment of Kearns J. His sentiments, or words to the same effect, are in fact commonplace in the jurisprudence on this issue. In Braddish v. DPP [2001] 3 IR 127, I said, at p.135:
“It would be difficult to think of evidence more directly relevant than a purported video tape showing the commission of the crime. But in cases where the evidence is not of such directed manifest relevance, the duty to preserve and disclose it has to be interpreted in a fair and reasonable manner. It must be recalled that, in the words of Lynch J. in Murphy v. DPP [1989] IlRM 71, the duty to preserve evidence is to do so ‘so far as it is necessary and practicable’. A duty so qualified cannot be precisely or exhaustively defined in words of general application. Certainly, it cannot be interpreted as requiring the Gardaí to engage in disproportionate commitments of man power or resources in an exhaustive search for every conceivable kind of evidence. The duty must be interpreted realistically on the facts of each case.”
Preserving Evidence vs. Seeking Evidence.
In the jurisprudence in this area, there has been some tension between formulations of the duty of the Gardaí in terms of a duty to “preserve and maintain all evidence which comes into their possession as having a bearing or potential bearing on the issue of guilt or innocence of the accused” (see Savage v. DPP [2009] 1 IR 185), on the one hand, and another formulation:
“It is the duty of the Gardaí, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence”. (See Braddish v. DPP, cited above, at p.133).
The latter formulation was in a judgment which Denham and Geoghegan JJ agreed in Dunne v. DPP [2002] 2 IR 305, Fennelly J. also expressed his agreement with this passage, at p.342.
However, the judgment in which Fennelly J. did so was a dissenting judgment. Mr. Justice Fennelly dissented on the basis that, in Dunne, there was no evidence that the Gardaí had ever come into possession of the evidential material which was missing or lost, a video tape. He said, at p.343:
“On the facts of Braddish, the video evidence had actually been in the possession of the Gardaí. For that reason, the decision of the Court was consistent with the line of authorities commencing with a judgment of Lynch J. in Murphy v. DPP [1989] ILRM 71 where the passage, just cited, [i.e. that cited above from Braddish goes further so as to encompass evidence which the Gardaí should have sought out, I believe it is obiter”.
I respectfully agree with Fennelly J. that the passage cited above from Braddish was indeed obiter in that case. But it was reiterated in the majority judgment in Dunne, where it was not obiter but directly relevant to the ratio.
But the significant point about the dissenting judgment in Dunne is that it was based on the proposition that the evidence had never been in the possession of the Gardaí in the first place. As the head note puts it:
“The Court would not interfere save where the missing evidence had been in the hands of the prosecution. If it had been established that the contested video evidence had been given to the Gardaí, the Court could interfere”.
Braddish was accordingly distinguished in the dissenting judgment on that basis. But that is a basis not available in this case, where it is perfectly clear that the vehicle in question was in the hands of the Gardaí and was in fact examined by a garda expert at their request while it was in their hands.
A new departure?
In his judgment in what he calls “this admittedly difficult case” Mr. Justice O’Donnell states that:
“My experience of this line of authority culminating in this case has led me if anything with greater clarity and conviction to the conclusion that the line of authority which has generated so many decisions in the Superior Courts in recent years deserves a comprehensive re-examination.”
He traces this line of authority to the well known and long established case of The State (O’Connell) v. Fawsitt [1986] IR 362. He quotes at length from the High Court decision in that case, later reversed by the unanimous decision of this Court, on the relevant point.
I agree that the passage from the judgment of this Court in O’Connell set out at para. 8 of Mr. Justice O’Donnell’s judgment is one of central importance.
In his eloquent and strongly expressed analysis, O’Donnell J. questions the finding of Finlay C.J. that:
“I am satisfied that if a person’s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then the appropriate remedy by which the constitutional rights of an individual can be defended and protected is by an order of prohibition.”
O’Donnell J. concludes that:
“There is much therefore to be said at both practical and theoretical level, for the trial court having the initial jurisdiction to determine the impact on the trial of the absence of evidence.”
And that:
“If as it appears, uniquely, Irish law is to require the matter to be addressed exclusively, or even primarily, to the imperfect and in-adapted lens of judicial review, then in my view, that requires detailed analysis and careful scrutiny.”
This case has come before the Superior Courts by way of a motion to prohibit a trial, the procedure mandated by O’Connell v. Fawsitt. Neither side has asked us to depart from what is said in that case. No-one could possibly object to “detailed analysis and careful scrutiny” of any proposition which is, or which has been made to appear, controversial and is genuinely at issue. But I prefer to withhold comment on whether we should depart from the procedures deemed appropriate by Finlay C.J. in O’Connell until the point arises in a case where one side or other invites us to do so. The point has not been argued in the present case and “a point not argued is a point not decided”: see Ó Dálaigh C.J. in
State (Quinn) v. Ryan [1965] IR 70 at 120.
O’Donnell J. has, I am confident, omitted no consideration which could conceivably be marshalled in support of a new departure, but I should like to hear what can be urged, in a concrete case, on the other side of the question.
There are however a number of points in O’Donnell J.’s eloquent and obviously deeply felt excursus on this topic which relate to the facts of the present case, and to the manner in which cases of this sort are at present approached, on which I think it appropriate to comment briefly.
Even if the Court were requested to depart from O’Connell, and were minded to set aside the opinion of Chief Justice Finlay, with which such distinguished jurists as Walsh J., Henchy J., Griffin J. and McCarthy J. agreed, there would be little point in the exercise unless the Court were in a position to indicate a clear line of guidance to trial judges in the Central Criminal Court and the Circuit Courts around the country, and to the Court of Criminal Appeal, as to how the jurisdiction is to be exercised. As the judgment of Mr. Justice O’Donnell in this case suggests, that task would not be an easy or an uncontroversial one.
A salient feature.
There seems to be no doubt on the authorities that the Court will grant relief in a straightforward case where evidence of clear exculpatory potential has been in the possession of the Gardaí but has been lost, destroyed, given away or becomes untraceable while the Gardaí are responsible for it. This seems to follow from the decision of this Court in Braddish, cited above. The same position appears to obtain in other jurisdictions as well: see Brady v. Maryland 373 US 83 where it was held by the United States Supreme Court that:
“The suppression by the prosecution of evidence favourable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady was an egregious case where a man accused of murder, which carried a death sentence, had a statement of another person admitting that he, rather than Brady, strangled the deceased concealed from him. The evidential potential of this was self-evident.
Difficulty however arises where the item in question is lost, destroyed, or otherwise become unavailable before it is examined, so that its evidential potential is, on one degree or another, a matter for speculation. This question has been considered elsewhere.
This situation was considered, in the light of Brady, by the U.S. Court of Appeals for the District of Columbia in United States v. Bryant 142 App DC 132 and 439F 2d 642. There, the Court found that a duty of disclosure existed and that the Government [i.e., the prosecution] must at least make “earnest efforts” to preserve evidence it has gathered (ibid at 651).
Bryant concerned a defence demand for disclosure of a tape recording admittedly made by Government agents of motel room conversations between the defendants and an undercover agent allegedly concerning a sale of narcotics. The prosecution alleged that it had lost the tape recording. Although neither the Court nor the defence knew whether or not the tape contained exculpatory material, the Court considered that the missing tape was “absolutely crucial” to the question of the defendant’s guilt or innocence. Accordingly the Court ruled:
“The duty of disclosure attaches in some form once the government has first gathered and taken possession of evidence. Otherwise, disclosure might be avoided by destroying vital evidence before a prosecution begins or before the defendants hear of its existence. Hence, we hold that before a request for discovery has been made, the duty of disclosure is operative as a duty of preservation. Only if the evidence is carefully preserved during the early stages of investigation will disclosure be possible later.” (ibid, 651)
(Emphasis supplied)
In Bryant, the Court imposed on the prosecution the burden of demonstrating that earnest efforts, in the form of regular procedures, had been made to preserve such evidence holding that the prosecution was accountable for its loss unless it could show that it had “promulgated, enforced, and attempted in good faith to follow rigorous and systematic procedures designed to protect all discoverable evidence gathered in the course of a criminal investigation”. (ibid at 652). In footnote 21 on the same page the Court added:
“Although there is an exception for good faith loss of evidence, there is no exception for good faith administrative decisions that certain evidence is not discoverable and thus need not be preserved… hence, in framing the rules for evidence preservation, investigative agencies must define discoverable evidence very broadly, including any evidence that ‘might’ be favourable to the accused.”
In the same case, at p.648, Wright J. articulated a policy to encourage fundamental fairness as the rationale behind Bryant:
“Were Brady and its progeny applicable only when the exact content of non-disclosed materials were known, the disclosure duty would be an empty promise, easily circumvented by the suppression of evidence by means of destruction rather than mere failure to reveal. The purpose of the duty is not simply to correct an imbalance of advantage, whereby the prosecution may surprise the defence at trial with new evidence; rather, it is also to make of the trial a search for truth informed by all relevant material, much of which, because of imbalance of investigative resources, will be exclusively in the hands of the government.”
This ratio seems entirely consistent with the words of Fennelly J., quoted above, that:
“… it is of the greatest importance that the Court ensure that the police force behaves with impeccable fairness in its handling of evidence”.
Bryant was relied upon in a New York case, People v. Kelly
62 NY 2d 516, 478 NYS 2d 834. In that case, certain items of evidence, consisting of cash, were lost in prosecution custody. The defence moved to dismiss, and the motion was granted. On appeal the Court of Appeal reversed the first decision and sent the matter back to the trial court for a determination “of the appropriate sanction”. The Court of Appeal said:
“A necessary corollary of the duty to disclose is the obligation to preserve evidence until a request for disclosure is made (US v. Bryant). Any other rule would facilitate evasion of the disclosure requirements. Accordingly, where discoverable evidence gathered by the prosecution or its agent is lost, the People have the heavy duty of establishing that diligent, good-faith efforts were made to prevent the loss. Otherwise, sanctions will be imposed.” (ibid at 520; Emphasis added).
The last sentence, about “sanctions” relates to a specific feature of the American jurisprudence. Although trials are sometimes stayed in missing evidence cases, this is rare and it is more usual to impose “sanctions” on the prosecution. In doing this, “the Court’s attention should focus primarily on the over-riding need to eliminate prejudice to the defendant” (ibid at 521). I must confess that some of the sanctions imposed seem a little unusual to me. For example, in
People v. Marr (177 AD 2d 964), the police accidentally destroyed a video tape of the defendant after his arrest for the equivalent of drunken driving. The Court refused to dismiss the indictment but instead, as a sanction, refused to permit the prosecution to prove in evidence, as they had intended to do and were otherwise entitled to do, that that defendant had refused to submit to certain tests.
I believe it is fair to sum up the US position by saying firstly that there is a strong obligation on the prosecution to preserve material that may be disclosable; that the onus is on the prosecution to explain any loss or non-collection of such material; that appellate courts, including the US Supreme Court, are reluctant to impose dismissal as a sanction; but that the case law is replete with the imposition of sanctions of one sort or another.
The logic of “sanctioning” prosecution for the loss or destruction of evidential material that should have been kept or preserved by forbidding them to adduce other evidence which is properly admissible is not entirely clear to me. Nevertheless, the cases show, in the years since Youngblood was decided by the U.S. Supreme Court, greatly increased, indeed now pervasive, concern that evidential materials be preserved especially materials which give rise to the possibility of DNA examination. In part, undoubtedly, this new concern is due to an increased public consciousness of the potential of DNA evidence to exculpate people who have been wrongly convicted and to inculpate those actually guilty of serious offences. This consciousness itself has been greatly contributed to by the work of the Innocence Project, much associated with the name of the prominent Attorney Barry Scheck.
These developments, in turn, have given rise to positive horror of the deliberate destruction loss or concealment of evidence, even in cases where the practise seems to have been common enough at the time of the trial. While this judgment was being drafted, a very dramatic example of an American “concealed evidence” case came to light. Since it is not of direct relevance to resolution of the present case, I have included it as Appendix III to this judgment.
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To my mind, a central issue amongst those discussed by Mr. Justice O’Donnell is how to deal with “lost” items. There will always be a measure of uncertainty, precisely because the item is unavailable. For this reason, the most that an aggrieved defendant can ever show is that he has suffered a real risk of prejudice. If one imposes on him a higher standard, such as burden of showing, affirmatively, that the missing and therefore un-examinable item certainly or probably, contained material which is both evidentially useful and exculpatory, one is imposing upon him a burden which is impossible to discharge. That, in turn, is equivalent to abandoning a jurisdiction in missing evidence cases which (speaking for myself) I would not be prepared to do.
Once an item of possible evidential significance is taken into the custody of the Gardaí, its loss or destruction cannot be attributed to the defendant. On the contrary, the Gardaí will normally have exclusive control of it and the question of what, precisely, happened to make it unavailable is a matter within their exclusive knowledge. It would appear to me to be very strange, and very illogical, to impose on the defendant a burden of showing what happened to an item in someone else’s custody. It seems equally problematical to me to say that when an item has become lost or destroyed while in official custody, it is for the defendant to prove that it would certainly or even probably have been of evidential use. The real risk of prejudice is the most that such a person can show, when the custodians of an item have allowed it to become unavailable. This proposition is pellucidly explained in the U.S. cases cited.
The “real risk of prejudice” test, well established in Irish jurisprudence, seems to mirror the “distinct possibility” of exonerating evidence to which Blackmun J. refers in Youngblood cited above.
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“Retrospect” revisited.
It occurs to me that the engine of the view which would deny relief in the present case is the belief that Mr. Wall’s emphasis on the lost potential for fingerprint evidence is somehow “a retrospective hypothesis”. Thus, it is said:
“While in retrospect it is certainly unfortunate that members of the Gardaí did not immediately act upon Lyndsey Hudson’s statement or anticipate that further evidence from Stephen Wall or somebody else might change the focus of their enquiries and make fingerprint evidence possibly useful...”.
I entirely agree with the main factual core of that passage:
“…it is certainly unfortunate that members of the Gardaí did not act immediately upon Lyndsey Hudson’s statement…”.
I would, however, use a stronger word than “unfortunate”, I would say it is unexplained and gives rise to a real possibility of grave injustice. However, the passage quoted is introduced by the phrase:
This, perhaps, points up a very important distinction in the views taken of the facts of the case. I cannot agree that it is only in retrospect, or with hindsight, that it is “unfortunate” (or worse) that the Gardaí did not act immediately on the allegation of Lyndsey Hudson. It will be recalled that still another judgment likewise spoke of a “retrospective hypothesis”.
The allegation of Ms. Hudson was an extremely serious one. She had been the driver of a car which gone on to the wrong side of the road causing a young passenger to loose her life. Interviewed - under caution - about this she explained that it was not due to any want of care on her part that this tragedy occurred, but due to a deliberate act of one of her passengers, Jason Wall. The extreme seriousness of this should have been apparent to any person of normal intelligence. I have no doubt it was in fact perfectly clear to the Gardaí. Nevertheless, the Gardaí who heard the allegation made did not tell their own expert, also a member of the Gardaí, about the allegation, and have offered not one word of explanation as to why this was so. Eleven days later they released the car for destruction, thereby making any search for objective evidence of the truth or falsity of Lyndsey Hudson’s allegation forever impossible.
These are quite extraordinary acts and omissions. The reason they occurred is within the exclusive knowledge of the Gardaí and perhaps of the prosecution. They should not have occurred and that was evident from the moment Ms. Hudson made her allegation on the 18th August, 2005. There is no question whatever of retrospect or hindsight, and no evidential basis to think otherwise.
The passage with which I have agreed continues:
“… unfortunate that members of the Gardaí did not immediately act upon Lyndsey Hudson’s statement or anticipate that further evidence from Stephen Wall or somebody else might change the focus of their enquiries and make fingerprint evidence possibly useful…”.
I frankly do not understand this reference. There is no evidence whatever that anything occurred after Ms. Hudson’s allegation to “change the focus of their enquiries”. The Gardaí eventually told Mr. Wall of her allegation about four months later, in December 2005, which was two to three months before the new statement made by Stephen Wall while a prisoner in Mountjoy. The reference to a change in focus, in fact, is another aspect of the “retrospect” theory. There was no need for anything to happen after the 18th August to make a fingerprint examination “possibly useful”. It was manifestly possibly useful (and I believe, a great deal more than that) on and from the 18th August. No guard has given evidence of a “change of focus”.
Since the Gardaí themselves have not claimed that the investigation underwent any sort of change of focus, and since there is no other evidence for that point of view, to posit a change of focus and something giving rise to it in an evidential vacuum seems to me unduly favourable to the Garda case. I cannot see that there is any evidence, much less coercive evidence, arguing the existence of a change of focus or something that gave rise to it. I believe that to infer such a change of focus merely from the fact that the Gardaí did not, in fact, communicate Lyndsey Hudson’s accusation for many months is to assume that they would not have behaved in that way without some good reason. I can see no basis for that assumption. Firstly, the Gardaí themselves have not contended for the proposition that the focus of the investigation shifted. Secondly, there is no evidence that any such thing occurred; and thirdly, the chronology is against it - Stephen Wall’s statement came a month or more after the allegation was eventually put to Jason Wall. Stephen’s statement may have been the reason Jason was charged, but it was not the trigger or change in focus which led to Lyndsey Hudson’s allegation being put to him. I can see no other candidate for that role. No-one says that the focus shifted, and it is not easy to see what, precisely, could have changed between the 29th August 2005 and the 26th January 2006.
In reasoning thus, I am far from alleging some form of positive malpractice by the Gardai or anyone connected with them. It may be that there was some element of happenstance - maybe the guard who gave away the car had not heard of the young lady’s allegation, maybe the guard who did hear it forgot about the case for a long time and was then faced with enquiries about it. This, of course, is pure speculation, as is the “shift of focus” theory and I mention it only to suggest that the hypothesis of some unnamed event or development which changed the focus of the enquiry is by no means the only one rationally available. And it must be recalled that the need to speculate or to attempt to draw inferences from insufficient material, arises entirely from the Garda failure to disclose who, precisely, gave away the car and what reasons he or she had for doing so; why Mr. Wall was not told of the driver’s allegation until so many months had passed and the many other relevant matters mentioned above.
At para. 24 of the same judgment my colleague remarks that:
“There is no doubt that if a fingerprint examination had been carried out, or the vehicle retained, that these arguments could not have been made, but the question whether a trial should be prohibited depends on an analysis of the culpability of the omission, and the materiality of the evidence which was not obtained in the context of the case as a whole.”
I wish entirely to disavow the notion of an analysis of the “culpability” of the failure to carry out a fingerprint test or failure to retain the vehicle. Culpability for these things could only be culpability of the Gardaí. There is no support whatever in the existing jurisprudence for the view that this jurisdiction exists to police the Gardaí, and I wish to disavow that proposition entirely. The Gardaí are already subject to the ordinary criminal law, their own disciplinary code and in some sense to the Garda Inspectorate: another forum of responsibility is hardly needed. On the contrary, on the existing authorities, the entire focus of these cases must be whether it has been shown that the defendant has incurred a real risk of an unfair trial. One cannot analyse with any precision, either, “the materiality” of evidence which has been lost or destroyed without examination: as I have said supra, that is why a “real risk” of prejudice is all that can possibly be shown. The defendant is not responsible for the loss of the item which should have been examined before the Gardaí allowed it to be destroyed.
I would allow the appeal and grant the relief sought.
Judgment of O’Donnell J. delivered on the 11th day of December 2013.
1. It is now more than eight years since a car driven by one young woman, and in which four other young people were passengers, was involved in a fatal car crash at Church Road, Ballybrack, County Dublin, which resulted in the death of one of the passengers, Emma Wall, the cousin of the applicant herein. It appears, at least for present purposes, that any innocent mechanical explanation for the collision can be excluded and that the immediate cause of the collision was the fact that the car in which the young people were travelling was suddenly steered onto the incorrect side of the road and collided with an oncoming car. If the car was caused to swerve onto its incorrect side of the road then, at least prima facie, criminal liability could attach to the actor responsible for that. The fundamental question in this case would appear to be who was responsible for that manoeuvre. Here, as set out in the judgments of my colleagues, there is evidence in the shape of statements from two of the occupants of the car that the immediate and proximate cause of the car swerving onto the incorrect side of the road was that the applicant Jason Wall, then a rear seat passenger, reached between the front seats and grabbed the steering wheel of the car causing the driver to lose control.
2. When there is evidence from which criminal wrongdoing can be deduced the Irish legal system, established under the Irish Constitution, provides an elaborate, well understood, and I believe well trusted, system for the trial of the issue of the guilt or innocence of an accused person. That not only involves the preparation and presentation of a charge, but also a trial of the issues of fact and law “in due course of law” under Article 38 of the Constitution which requires, inter alia, a trial which accords with fair procedures conducted before an independent tribunal (which in this case as in the case of all but minor offences and those triable by special courts will be a judge with a jury drawn from a representative sample of the population) and where in any serious matter, legal aid will be provided if the accused person is not able to make provision for legal assistance from his or her own resources. In such a trial the determination of facts will normally occur only by reference to admissible evidence and the onus of proof is on the prosecution to prove guilt which will only be found where it is established to the satisfaction of the factfinder, beyond any reasonable doubt. Any conviction arrived at can be appealed to a court which will either rehear the matter (where it relates to a summary trial) or to a court which will review the proceedings in the trial court. All of this and more is, I consider, comprehended by trial in due course of law pursuant to Article 38 of the Irish Constitution and the administration of justice generally under Article 34.
3. But no Article 38 trial of the serious issues arising in this case has yet occurred. If the appellant succeeds in this case no such trial will take place. If his appeal is rejected however, the trial may commence but at a long remove in time from the events of August 2005 with all the undesirable consequences for the availability of witnesses, the state of the memory of such witnesses who are available and the general degrading of evidence which is now well recognised. Neither outcome can be said to be intrinsically desirable. It may however be the case that such an unattractive Hobson’s choice is the price that must be paid for a system which maintains the values of demonstrable fairness. There are many circumstances in which the administration of justice requires a price to be paid in terms of efficiency and in terms of the pursuit of wrongdoing, in the interests of fairness. But it is, at least in my view, a legitimate question whether the heavy price exacted is an unavoidable requirement of the constitutional guarantee of a trial in due course of law.
4. The claim in these proceedings which was required to be determined before any trial could take place (if at all) was that the failure of investigating gardaí to obtain evidence in the nature of a fingerprint test from the steering wheel of the car, or perhaps put another way, the release by the gardaí of the crashed motor car from their custody without any fingerprint test having been carried out on the steering wheel, meant that there was a real risk of an unfair trial, and accordingly, that no trial at all could take place. This type of contention will be immediately familiar to anyone with even passing familiarity with the decisions of these courts in recent years. Cases involving lost evidence, or missing evidence, or variants thereof, have become a very familiar feature of litigation in the Superior Courts, notably since the landmark case of Braddish v. Director of Public Prosecutions [2001] 3 IR 127.
5. It has been said that in this fact-intensive and fact-dependent area, each case depends on its own particular facts. In this case MacMenamin and Hardiman JJ. have engaged in great, indeed meticulous, detail with the facts as disclosed or as may be deduced from the affidavit evidence, and have conducted considerable research, albeit coming to very different conclusions. While I admire the considerable rhetorical force of the judgment delivered by Hardiman J and respect the sentiments which underlie it, I have come to the conclusion that I agree with the judgment of MacMenamin J. in this admittedly difficult case. Normally, it would be sufficient to simply record my respectful agreement with the majority judgment. But my experience of this line of authority culminating in this case has led me, with greater clarity and conviction if anything, to the conclusion that the line of authority which has generated so many decisions in the Superior Courts in recent years deserves a comprehensive re-examination. I readily acknowledge that these matters were not argued in this case, and my observations are therefore tentative and may be subject to reconsideration if and when the matter is fully argued. However, I consider that these matters require to be raised and deserve full and focussed scrutiny in an appropriate case.
6. It is not normally a function of a final court of appeal to conduct a meticulous examination on a case by case basis of the discernible facts of individual cases which have not yet come to trial. A line of jurisprudence which has as its central principle the proposition that each case must be determined on its own individual facts, is a line of jurisprudence which guarantees that many, if not all, such individual cases will inevitably reach the High Court and this Court on appeal, with all that involves in terms of the delay of criminal trials on the one hand, and the use of scarce resources on the other. This meticulous examination of the facts alleged to be in issue in individual cases occurs in a context where the jurisdiction in this and similar cases is one which is supervisory and, it is said, exceptional. This examination by reference to affidavit evidence takes place even though there exists a well developed, carefully and finely calibrated, mechanism for the trial of offences involving the testing of evidence, the determination of facts on oral evidence by well established standards, and a comprehensive review on appeal, which it might be thought more naturally adapted to the ascertainment and evaluation of facts and the particular task of ensuring the fairness of criminal trials. In my view, a consideration of this line of authority gives rise to a number of questions.
Why is the issue of missing evidence (and/or delay) dealt with by way of judicial review?
7. Scrutiny by way of judicial review in anticipation of a trial has obvious practical and unhelpful consequences both in terms of the delay of any trial, and the consequential increase in burden upon the Superior Courts. It thus requires to be justified. However, even assuming a perfectly resourced system both in trial and appellate courts –and that is an ideal unlikely ever to be achieved in practice – there are other significant problems with the system of judicial review when used to determine issues relating to missing or lost evidence. Judicial review is a system designed, or at least intended, to provide a speedy determination of issues relating to the jurisdiction of inferior courts. It is well adapted to determine precise issues of law. It is poorly adapted for the resolution of factual matters, particularly when those issues are to be determined in advance of a trial and through the imperfect lens of affidavits necessarily drafted by professional advisers and which, perhaps understandably, seek to maximise that party’s case while exercising caution about revealing testimony capable of being deployed against the party in the event that a trial might ensue. Looked at from the vantage point of function and efficiency, it might be thought that the examination of facts and the impact of the presence or absence of such facts upon the fairness of a trial should take place in the trial court with the possibility of review on appeal. However, currently, such claims are addressed by judicial review. If the Constitution or more general principles of fairness demands that this be so, then it must indeed be so. But it is a process which, at a minimum, requires justification.
8. The doctrinal source of what appears to be a jurisdiction unique to Ireland, whereby questions of missing and lost evidence are adjudicated in advance through the mechanism of judicial review, is a single short passage in the judgment of this court in The State (O’Connell) v. Fawsitt [1986] I.R. 362. That case involved a challenge to a case then awaiting trial in Cork Circuit Court not on grounds of missing evidence but because of the undue delay in securing a trial date, and a consequent alleged prejudice caused by the absence and unavailability of witnesses. The context of the case, it appears, was a lack of resources and growing delays in particular at Circuit Court level rather than any more general principle.
9. In the High Court Murphy J., having carefully reviewed the case and case law both domestic and international, refused prohibition. He considered it important that the delay in question was largely located in the delay in having a case listed for hearing and therefore, only occurred after adjournment applications made to, and considered by, the trial court. It followed therefore that the delay was at least being monitored by the court. He expressed the view that the trial court should, at least in the first instance, deal with the question of the impact on the case of such delay. He continued:
“… not only would the judge have been conscious of these factors but he would have been well aware of the powers which a trial judge would have had to give appropriate warnings or direction to the jury to prevent any injustice arising as a result of any such defect. Indeed in granting any application for an adjournment or in permitting the trial to continue at any time in the future a judge of the Circuit Court has the same duty as this court to recognise and vindicate the constitutional rights of the accused. Accordingly, if the learned Circuit Court judge is satisfied that, in all of the circumstances of the case as established before him, that the delay was excessive or unduly prejudicial to the prosecutor, it would be the right and duty of the Circuit judge to dismiss the pending charges and I have no reason to doubt that he will adopt that course if it is appropriate so to do. In recognising the rights, powers and duties of the trial court I do not intend in any way to abdicate the functions or duties of this court. Rather I am concerned that the case made on behalf of the prosecutor involves a combination of arguments and propositions some of which involve differences of emphasis if not indeed disputes of facts; others are based upon problems which are anticipated but either may or may not materialise or may be resolved at or prior to the trial. It is only the delay which is an undisputed objective fact and even in relation to that I believe that it would be preferable for the court which granted the adjournments from time to time to deal with the matter in the first instance at any rate.” (p. 374)
10. The Supreme Court reversed the High Court decision and allowed the appeal. In a short judgment, Finlay C.J. (with whom Walsh, Henchy, Griffin and McCarthy JJ. agreed) quoted a portion of the judgment of Murphy J., including the passage set out above up to the words “I have no reason to doubt that he will adopt that course if it is appropriate so to do”. The essence of the decision of the Supreme Court is to be found in a subsequent paragraph of the judgment which it is desirable to set out in full:
“I have come to the conclusion that, in this portion of the judgment, the learned trial judge was in error. I am satisfied that if a person’s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then the appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an order of prohibition. It may well be that an equal remedy or alternative remedy in summary cases is an application to the justice concerned to dismiss because of the delay. In the case of a trial on an indictable charge, however, I am not satisfied that it is correct to leave to the trial judge a discretion as to whether, as it were, to prohibit himself from letting the indictment go forward or whether to let the indictment go forward. A person charged with an indictable offence and whose chances of a fair trial have been prejudiced by excessive delay should not be put to the risk of being arraigned and pleading before the jury.” (emphasis added) (p. 379)
11. It is not apparent why the uncontroversial conclusion that judicial review, is capable of being an appropriate remedy in cases of missing evidence or delay, should necessarily lead to the conclusion that it is the exclusive remedy. Furthermore, the rejection by the Supreme Court of the High Court’s reasoning in The State (O’Connell) v. Fawsitt relying on the capacity and indeed duty of the trial judge to guarantee the fairness of the trial, is not easy to reconcile with subsequent repeated statements in this court emphasising the role of the trial judge in ensuring such fairness: See for example Dunne v. Director of Public Prosecutions [2002] 2 IR 305, p. 336, per Fennelly J.; and D.C. v. Director of Public Prosecutions [2005] 4 I R 281, p. 283, per Denham J.; and indeed the judgment of Finlay C.J., in Daly v. Director of Public Prosecutions (11th April 1994) in which he appeared to endorsed similar observations made by the High Court judge in that case as to the duty of a trial court to ensure fairness. Nor is it readily apparent what logical justification there is for the distinction drawn between trials in the District Court and trials on indictment, both of which are required to adhere to the constitutional standard of trial in due course of law.
12. The logic of the decision in The State (O’Connell) v Fawsitt, in identifying judicial review as the exclusive remedy, also leads to an unusual situation where it is sought to challenge trials occurring in the Central Criminal Court on the grounds of missing or lost evidence or indeed delay. Since the basis of judicial review is the power of the High Court to exercise control over inferior courts and tribunals acting in excess of jurisdiction, such review is not available in respect of decisions of the High Court itself. Accordingly it has become the practice that an applicant in such a case seeks instead to prohibit the Director of Public Prosecutions from continuing with such a trial. But at least from a conceptual level, this seems to blur the distinction between the prosecutor and the trial court. There is much to be said for the observation that prosecutors prosecute cases, trial courts try cases, appeal courts hear appeals, and the Superior Courts have a residual power of review whether by way of prohibition in advance, or certiorari afterwards, and it is unhelpful to confuse those roles. It is the court not the prosecutor which has the obligation and the jurisdiction to conduct the trial.
13. Indeed, while it is not necessarily a touchstone for the correctness of any result, I consider that if the trial courts had a jurisdiction to dismiss an indictment or stay a prosecution on grounds of missing or lost evidence, that could also be in the interests of all parties including potential defendants. There is much to be said for a situation where the decision as to whether or not a trial can be conducted fairly is made by the very person under a duty to ensure that if such trial proceeds it will be fair in fact, and not just in theory, and who furthermore can keep that decision under review as a case develops. Also, the division of function which the current law permits between Superior Courts exercising what is now recognised as exceptional jurisdiction in advance of trial, and a residual jurisdiction in a trial court, can be unhelpful. A trial court, when or if, it comes to address questions of unfairness by reason of the absence of evidence, may feel constrained by the prior determination on the judicial review. There is much therefore, to be said at both a practical and theoretical level, for the trial court having the initial jurisdiction to determine the impact on the trial of the absence of evidence.
14. Since I agree that the experience of other common law jurisdictions can shed valuable light on issues which are required to be determined by this court, it is, I think, significant that in other jurisdictions, such as, Northern Ireland (R v. Mc Nally and Mc Manus (2009) NICA 3; R v Glen [ 2003] NIJB 99), England and Wales (R (Ebrahim) v. Feltham Magistrates Court [2001] EWHC Admin 130), Australia (Jago v. District Court of NSW (1989) 168 C.L.R. 23 and The Queen v. Edwards [2009] H.C.A. 20), New Zealand (Hazlewood v. The Queen [2013] N.Z.C.A. 406) and of course the United States of America (Brady v. Maryland 373 U.S. 83 (1963), California v. Trombetta 467 US 479 (1984) and Arizona v. Youngblood 488 U.S. 51 (1988)), it appears that the issue is addressed by motion or application at or in the trial, and then is subject to appeal in the ordinary way. Irish law however, requires the matter to be addressed primarily and almost exclusively, through what might be thought to be the imperfect and ill adapted lens of judicial review on the basis of affidavit evidence alone. That position, in my view, requires detailed analysis careful scrutiny and justification.
What test should be applied?
15. Wherever the issue of the impact of missing evidence on the fairness of a trial is to be determined it is also necessary to determine the onus, and perhaps more importantly, the standard, of proof. It appears that the onus lies upon the applicant, and currently that obligation is to establish “a real risk” that the applicant could not obtain a fair trial (see Finlay C.J. Director of Public Prosecutions v. Z [1994] 2 I.R. 476 cited in C.D. v. Director of Public Prosecutions [2009] IESC 70 by Fennelly J.). As was observed in C.D. the test is subject to the important qualification addressed in Director of Public Prosecutions v. Z namely that:
“…where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial.” (Finlay C.J. in Director of Public Prosecutions v. Z at p. 507 and cited by Fennelly J. in C.D. v. Director of Public Prosecutions at para. 18)
16. I recognise that superficial differences of language may have little impact in substance, particularly when applied in a context which places such emphasis on the response of the judge to the individual facts of the particular case. Debates about the precise formulation of a legal test, much loved by lawyers, can easily become sterile. Nevertheless, it is worth observing that there is a potential confusion in the test which is applied, with at least the possibility of a significant difference in the standard applied in different cases. Thus, for example, in the case of Daly v. Director of Public Prosecutions, referred to above, the Supreme Court, dealing as it happened with a question of a failure to obtain fingerprint evidence from a steering wheel, referred to the test from D. v. Director of Public Prosecutions [1994] 2 I.R. 465 and Director of Public Prosecutions v. Z. in terms that “the court can and should intervene if but only if there is an unavoidable or inevitable unfair trial to be seen as occurring, one which cannot be avoided by directions and proper charges given to a jury by a trial judge”. This is capable of being a somewhat different, and more exacting, test than the “real risk” formulation. The tension is encapsulated in a portion of the judgment of Hamilton P. in Director of Public Prosecutions v. Z. as follows:
“When is a court justified in intervening with the usual criminal law process by granting a permanent stay of criminal proceedings and what is the standard of proof which the court should require from the applicant for such an order based on his allegation of the likelihood of an unfair trial? These questions were considered by the Supreme Court in the D. v. Director of Public Prosecutions hereinbefore referred to. In the course of his judgment in that case, the Chief Justice stated at p. 467 of the report:
“…the standard of proof which the court should require from the applicant in this case concerning his allegation of the likelihood of an unfair trial is that he should be required to establish that there was a serious risk of that occurring.
This standard of proof was accepted by the other members of the Supreme Court.
In the course of his judgment in Jago v. The District Court of New South Wales, Chief Justice Mason stated:
“To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.”
Hamilton P., in Director of Public Prosecutions v. Z, continued:
“If the phrase ‘real or serious risk’ was inserted before ‘a permanent’ in that passage, the tests would be the same.” (p. 494)
While this last observation is perhaps correct, it rather inverts the natural conclusion which might be drawn from the two passages. The absence of a phrase such as “real or serious risk” in the formulation of Jago might more reasonably be thought to demonstrate that the two tests are different, and indicate therefore that some analysis is required to determine if such distinction was intended and if so, justified.
17. It may be arguable that the test of a “real risk” of an unfair trial, particularly in the context of anticipatory judicial review, sets the test too low. If there is a real risk of an unfair trial, there is nevertheless a real probability of a fair trial. Why should that fair trial be prohibited? Put in simple mathematical terms, I would consider a 30% risk of an event occurring to be a “real risk”. Nevertheless that means that 70% of the time that risk will not supervene. If the decision is to be taken on a once and for all basis, where there is no control over the outcome, then it might be readily accepted that the concepts of fair procedures, fair trial and the administration of justice, might all lead to the conclusion that such a risk is unacceptable. But that analysis does not address the position of the trial judge whose role it is to uphold the constitutional guarantee of a fair trial and that of the court of appeal whose function it is to correct errors at the trial stage. The test of “real risk” is not one which is applied in other circumstances in which it is sought to prohibit a trial. It is, for example, not unknown for parties to seek to prohibit trials on the grounds that the offence does not exist, or that the statute creating it is unconstitutional. In any such case, I do not apprehend that the court could apply a test of “real risk” of unconstitutionality. Instead, a court would require it to be demonstrated as a matter of law that the offence or procedure was unconstitutional.
18. As the judgments referred to above indicate, the test of “real risk” can itself be traced to D v. The Director of Public Prosecutions. As that case in turn make clear, the test was imported from that used the context of extradition cases, and the controversial decision in Finucane v. McMahon [1990] 1 I.R. 165. The difference in context is however significant, and might benefit from scrutiny and analysis.
19. The factual underpinning of Finucane was that there was an allegation that the extradition of the appellant should be refused because it was alleged that his constitutional rights would be violated in the jurisdiction to which it was sought to extradite him. Such a claim was necessarily anticipatory. More importantly, the theory on which the case was decided, involved the twin propositions (which it is not necessary to analyse in this case) that the Constitution protected rights of the citizen outside the jurisdiction, but that there was nothing an Irish court could do, once the person was extradited, if his constitutional rights were indeed violated in any way. It therefore made sense in that context to apply a test of “real risk” of a breach of constitutional rights. But that situation is not immediately comparable to an application to restrain a trial being conducted in the jurisdiction where it is presided over by a judge whose duty it is to uphold the Constitution and the laws and where the decision of that trial court is subject to appeal. In that context, the test of “real risk” of a fair trial arguably sets too low a test. The prohibition of a fair trial is not itself consistent with the administration of justice. As O’Higgins C.J. observed in In the Matter of The Criminal Law (Jurisdiction) Bill 1975 [1977] I.R. 129 the phrase “due course of law” in Article 38 “requires a fair and just balance between the exercise of individual freedoms and the requirements of an ordered society” (p. 152). There are a number of possible formulations of the test, and in my view it would be desirable for the matter to be carefully considered and authoritative guidance given.
Is there a duty to seek out evidence, which if breached may lead to the prohibition of a trial?
20. It is possible to either analyse this case as one which can be characterised by evidence (the steering wheel and/ or the car) which is in the possession of the gardaí and is lost (as Hardiman J. does), or one in which evidence (in this case fingerprints) is not obtained although, on an objective analysis, it ought to have been (as per MacMenamin J.). On balance I prefer the approach of MacMenamin J. The steering wheel is not evidence itself or at least cannot be said to be either inculpatory or exculpatory evidence, per se. It is however, an item from which evidence may be obtained. Whether or not this particular case is to be analysed as a failure to seek out case is not however my present concern. It is apparent that there are two categories, although the dividing line may be blurred and contestable in particular cases, and therefore a question arises as to the justification for prohibition of trials where it is alleged that there has been a failure to seek out evidence.
21. In Braddish v. The Director of Public Prosecutions it was held, obiter (Hardiman J.; Denham and Geoghegan JJ. concurring), that the gardaí were under a duty, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issues of guilt or innocence. That was so whether the prosecution proposed to rely on the evidence or not, and regardless of whether it assisted the prosecution’s case or not. The material itself had to be preserved and disclosed and any notes or records of it could not be destroyed or rendered unavailable. This duty was derived in part from the decision of Chief Barron Palles in Dillon v. O’Brien & Davis (1887) 20 L.R.Ir. 300. The test of what material must be sought out, obtained and retained was to be interpreted in a practical fashion, but guidance was to be obtained from the leading Irish case on discovery in civil proceedings, Sterling-Winthrop Group Ltd v. Farben-Fabriken Bayer Aktiengesellschaft [1967] I.R. 97, where it was held that every document related to a matter in question, which not only would be evidence, but also which contained “information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary” (p. 102) Although obiter in this respect, Braddish was approved and applied by a majority in this court in Dunne v. The Director of Public Prosecutions (Hardiman and McGuinness JJ.; Fennelly J. dissenting) where McGuinness J. may have qualified the test somewhat in acknowledging that Fennelly J.’s anxieties in dissent were reasonable and dangers did exist. It was essential therefore that the duty on the part of gardaí to seek out relevant evidence should not be too widely interpreted. Citing the judgment of Hardiman J. in Braddish, she approved the statement that “the duty must be interpreted realistically on the facts of each case” (p. 309). This qualification, understandable in itself, may risk introducing a further level of uncertainty into an already notoriously difficult test and thus increasing the chances of protracted applications for judicial review, and appeals to this court, with consequent delays. If this can be demonstrated to be an unavoidable consequence of a trial in due course of law then it must be accepted unhesitatingly, but, at a minimum, the conclusion deserves some thoughtful scrutiny.
22. It is sometimes said that the jurisprudence in relation to failure to seek out evidence is not of recent origin but dates back to the 1880s and follows inexorably from the judgment of Palles C.B. in Dillon v. O’Brien & Davis. I am not sure that this is so and would wish to have the question more closely analysed before accepting it. Dillon v. O’Brien & Davis is a case, itself reflective of the turbulent history of its time, in which police officers seized and retained evidence in the nature of books and money at the time of executing a warrant for the arrest of the plaintiff on a charge of conspiring at common law to solicit tenants in breach of their contracts to refuse to pay to the owners of farms the rent lawfully due. Such an offence was a misdemeanour at common law. The plaintiff sought to recover the material seized by commencing civil proceedings by way of an action in detinue. The issue determined in the case was the entitlement of the police to retain the items seized in the course of an arrest for a misdemeanour, it being accepted that such power existed in the case of arrest for felony. The court (Palles C.B., Dowse B. and Andrews J.) rejected the plaintiff’s claim. The Chief Baron stated:
“…the interest of the State in the person charged being brought to trial in due course necessarily extends as well to the preservation of material evidence of his guilt or innocence as to his custody for the purpose of the trial. His custody is of no value if the law is powerless to prevent the abstraction or destruction of this evidence, without which a trial would be no more than an empty form. But if there be a right to production or preservation of this evidence, I cannot see how it can be enforced otherwise than by capture.” (p. 317)
23. Dillon v. O’Brien & Davis is an important common law case establishing a right to detain items of evidential value found during the course of a lawful arrest. The entitlement of the police to do so can be described as a right, as indeed it was in Dillon, or a power, duty or function, and any such description would suffice for the purposes of the case which established that the police seizing material on arrest had a defence to a claim for detinue. It is not clear that Dillon establishes any duty owed to the public to seek out evidence, although I would willingly accept that such is, in general terms, the public duty, function, power and task of police investigating a crime. But the more important issue, not considered at all in Dillon, is what consequences follow from a failure to perform that duty or function, or to exercise that power. It would be a large step to deduce from a duty owed to the public, any common law duty to any individual in private law actionable in the case of breach. Recent authorities suggest that a private law duty is not necessarily to be derived from a public duty or obligation , and indeed the existence of a duty owed to the public may negative a private law duty to individuals (see for example cases such as Kennedy v. Law Society (no,4) [2005]3 I.R .228, and Beatty v Rent Tribunal [2006] 2 I.R.191 ). However, it would be an even larger step to derive from a power to detain evidential items (and a power to resist a civil claim for detinue), a duty to seek out evidence or material or information pursuant to the Sterling-Winthrop test, breach of which will give rise to an entitlement of an accused to have his or her trial prohibited. In my view it seems arguable that if such a legal duty arises and is enforceable as such, it is to be derived from the modern jurisprudence from Braddish thereon and cannot be deduced, inexorably or otherwise, from Dillon v. O’Brien & Davis. In that respect, it is noteworthy that although Dillon v. O’Brien & Davis is a respected authority and has been cited in important cases on search and seizure in the courts of the United Kingdom (Elias v. Pasmore (1934) 50 T.L.R. 196, Chic Fashions (West Wales) Ltd v. Jones [1968] 2 QB 299, Ghani v. Jones [1970] 1 Q.B. 693 and R (Rottman) v. Commissioner for the Metropolis [2002] 2 AC 692) and the United States (see for example Weeks v. US 232 U.S. 383 (1914) and U.S. v. Robinson 414 U.S. 218 (1973)), neither jurisdiction has sought to derive from it the duty to seek out all relevant information or material, breach of which may give rise to the likely prohibition the trial.
24. The test set out and adopted in Sterling-Winthrop v. Bayer is of course that set out in the judgment in the Peruvian Guano case: Compagnie Financière du Pacifique v. Peruvian Guano Company (1882) 11 QBD 55. Indeed the portion quoted in Braddish is from the well known judgment of Lord Justice Brett in that case. It is a case (and a test) which is however, viewed increasingly critically in a modern era where discovery threatens to swamp litigation both in its volume and in its cost. But it is not readily applicable in the field of criminal law, still less in defining an obligation to seek out evidence. In the first place, it is a test applied in inter partes litigation where the obligation is bilateral. Second, the question of relevance is determined by an analysis of the pleadings, and increasingly the evidence, exchanged between the parties and as refined sometimes by the delivery of interrogatories. None of this is easily or readily applicable to the process of the investigation of crime by a police force. Furthermore, there is no obligation on a party in civil proceedings to seek out evidence not already in its possession or power. Indeed, it is, in part, for reasons such as the foregoing that it has been held that there is no power to seek discovery in criminal proceedings: see e.g. Conlon v. Kelly [2002] 1 IR 10 approved in The People (Director of Public Prosecutions) v. Sweeney [2001] 4 I.R.102. I am not convinced that the majority decision in Dunne, even as qualified by McGuinness J., should be taken merely by a process of repetition without analysis to represent an established principle of Irish law. If there is to be such a principle, then it is one which, in my view, should be deduced by a rigorous analysis of case law and a close consideration of principle. Such a process might consider if any distinction is to be drawn between cases where evidence has not been obtained, obtained but lost, obtained but not disclosed, or positively suppressed, and the role culpability on the part of the police and the materiality of any evidence lost, not found, not disclosed or even suppressed, might have in such an analysis. By referring to culpability I do not intend to suggest that a trial will only become unfair if there is deliberate wrongdoing by the police. Rather it seems to me arguable that the blameworthiness of the failure to find or retain evidence, whether deliberate, reckless negligent or careless is a factor to be taken into account together with the materiality of the evidence. Any test must carefully address the very difficult issues which arise in cases such as this, where there are a number of competing and sometimes irreconcilable considerations. That is a process which is undoubtedly aided by a consideration of the case law of other common law jurisdictions.
25. I fully agree therefore that the Irish jurisprudence in this area and others can benefit from a careful analysis of the law of other jurisdictions and not least the lucid and penetrating analysis often to be found in the jurisprudence of the Supreme Court of the United States. Such scrutiny must however be carried out at a level beyond the superficial and must be conscious of the sometimes very different procedural background against which some of the cases are decided. Less worthy of emulation however, in my view at least, is the tendency to dismiss decisions of that court as merely reflective of some ideology or indeed the fact that a polarised modern appointment process and some judicial utterances, indeed decisions, have encouraged that tendency. In my view there remains much wisdom in the observations of Chief Justice Evans Hughes when asked at an earlier fraught period in American legal history whether he was a conservative or a liberal. He replied that he set little store by such terms, saying that “such characteristics are not infrequently used to foster prejudice. They serve as a very poor substitute for intelligent criticism. The judge who does his work in an objective spirit as a judge should, will address himself conscientiously to each case and will not trouble himself about labels”.
26. Approached in this way it is, I think, apparent for example that Arizona v. Youngblood, whatever its rhetorical force, is not a particularly useful authority in the resolution of this case. Neither that case nor the line of authority it develops gives any support to the proposition that anticipatory judicial review is the exclusive remedy in cases of missing evidence, or that the test should be a real risk of an unfair trial, or that there is an obligation on the police to seek out and detain all evidence that satisfies the Peruvian Guano test. Indeed, both the majority and the minority in Arizona v. Youngblood were agreed on the court’s “unwillingness to read the ‘fundamental fairness’ requirement of the Due Process Clause … as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution” (Rehnquist C.J., p. 58). Again it is noteworthy that the obligation there rejected was only to “retain and preserve” and not to seek out. Indeed, it seems that even the minority judgment in that case would not support the appellant in this case were the standard asserted there applied here, not least because in that case the appellant’s car had been seized, examined, turned over to a wrecking company and dismantled without the victim having viewed it and without the police having checked the car to confirm or refute elements of the victim’s testimony. There is no suggestion however, that this alone would have justified a dismissal of the indictment. Perhaps most notably of all, it has never been suggested that the Irish courts should apply a mala fides test to the question of missing evidence, and it is thus hard to see that the issue which so bitterly divided the majority from the minority in that case is of any assistance in the resolution of this case.
27. Of greater assistance therefore may be the immediately preceding decision in this line of authority California v. Trombetta on which the same court was unanimous. In that case the court in a judgment of Marshall J. overturned the decision of the California Court of Appeal dismissing an indictment in a drunk driving case because the state had not retained breath samples for independent analysis. At p. 486-487 Marshall J. observed:
“We have, however, never squarely addressed the government’s duty to take affirmative steps to preserve evidence on behalf of criminal defendants. The absence of doctrinal development in this area reflects, in part, the difficulty of developing rules to deal with evidence destroyed through prosecutorial neglect or oversight. Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed. …. Moreover, fashioning remedies for the illegal destruction of evidence can pose troubling choices. In nondisclosure cases, a court can grant the defendant a new trial at which the previously suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing -- as the California Court of Appeal did in this case -- the State’s most probative evidence.”
The court applied Killian v. U.S. 368 U.S. 231 (1961) where the Supreme Court refused to find a violation of the due process clause where on a prosecution for perjury, an FBI agent who had prepared the investigatory report had destroyed the preliminary notes made while interviewing the witnesses. The petitioner had argued that the notes would have been helpful to his defence and that there was therefore a violation of the due process caused by the destruction of potentially exculpatory evidence. The Supreme Court refused to hold that there was a violation of the due process clause. These cases, it should be observed, deal with the loss or destruction of evidence actually in the possession of the police, and do not go so far as to suggest a positive obligation to seek out evidence still less information which, if in the possession of a civil litigant, would satisfy the Peruvian Guano test of relevance.
28. In my discussion of the foregoing matters I thought it necessary to explain and illustrate my view that the jurisprudence in this important area deserves review by making reference to authorities in this and other jurisdictions. I hope it was clear from the terms and context of that discussion, and in any event I am happy to make clear now, that these authorities, and the issues to which they relate, did not all emerge from the submissions and arguments of counsel in this case. Accordingly, I readily acknowledge that this portion my judgment is obiter and should not be understood as deciding, or seeking to decide any point, or to indicate anything other than my reasons for considering that this area deserves re-examination by way of focussed argument and careful analysis. This element of my judgment is therefore correctly characterised as an excursus, and it follows that the materials referred to by me were not addressed in argument. In fairness however the same can be said for the impressive array of characters and materials, ranging from Sir William Herschell, the Feltham magistrates, Larry Youngblood, the Innocence project and the works of Dr Heffernan, Messrs Dinger, Bay and McGrath and others, to the experiences of Captain Dreyfus and the Guildford Four and former Judge Anderson, and on to the conservative tendency of a majority of the U.S. Supreme Court, and the case law of the U.S. which have so been so vividly and tellingly deployed in this and earlier versions of the powerful judgment of Hardiman J in this case and which has prompted my reflections on this area.
29. If this difficult area is the subject of detailed forensic scrutiny in a concrete case, then I believe the analysis and any outcome will benefit not alone from consideration of the law of other jurisdictions but more immediately from the convictions expressed so powerfully in recent Irish case law. For my part I fully agree with the observations of Fennelly J in Dunne:
“All this place in the context of a possible trial and it is of the greatest importance that the Courts ensure that the police force behaves with impeccable fairness in its handling of evidence.”
That applies wherever the issue of lost evidence arises and whatever the court and circumstances in which the issue is raised. It is in the interests of all parties, and even more importantly in the interests of justice, that all possible available material should be gathered and all relevant evidence should be adduced. However I am unconvinced that this proper approach should mean that cases of missing evidence should be approached on the basis of an assumption of police suppression of evidence. For example I cannot find any evidence which suggests that the Gardaí in this case deliberately ignored the possibility of finger print evidence or decided to confine their investigations to forms of evidence that would support a prosecution theory of the case. To so frame the issue certainly suggests an answer, but for me the issue is more complex and nuanced, and for that reason, I would welcome further debate and analysis.
30. Arizona v. Youngblood is helpful in one respect in the analysis of this case. Leaving aside for this purpose the judgment of the majority since it is not suggested that bad faith should be the criterion to be applied, it is instructive that Stevens J who concurred in the result, and the minority who dissented, agreed on the application of a test of materiality but differed as to the result. The key feature in Arizona v. Youngblood which bears comparison with the facts of this case was the nature of the test available which could be carried out on the victims’ clothing on the basis that the semen sample left on the clothing was that of the assailant. Even with the state of scientific knowledge at the time, and long, therefore, before the forensic advances which are now commonplace, it was possible to carry out tests which, if certain results were received, could have entirely exonerated the accused. As is lucidly explained in the judgment of Justice Blackman, samples of bodily fluid such as semen can show whether the person leaving the sample was a “secreter” or not (p. 68), i.e. somebody who does or does not secrete a blood type marker in such fluids . Thus if the sample showed positively that the assailant was not a secreter, and the accused was a secreter, then that result would exculpate the accused. If the sample showed that the assailant was a secreter, then it might be possible to detect the blood type and if that blood type differed from that of the accused, that evidence would be positively exculpatory. Of course, each of these scenarios involved a difference in the result. If the accused was not a secreter and so was the sample, then the evidence would be of no assistance to the accused, but also of little forensic value to the State given the number of persons who are secreters and non secreters. The same point might be made about blood type. They key feature for the dissenters in Arizona v. Youngblood therefore, was that if tested, the sample could have revealed an “immutable characteristic of the criminal and hence to exculpate a defendant charged with the crime” (p.69). It was because the evidence was relevant, revealed an immutable characteristic of the actual assailant, and was of a type “likely to be independently exculpatory” (p.70), that the dissenters would have quashed the conviction. Distinguishing the case from California v. Trombetta, Justice Blackmun concluded that there was a “distinct possibility in this case, one not present in California v. Trombetta, that a proper test would have exonerated the respondent, unrebutted by any other conclusive test results” (p. 68).
31. This may illustrate an important distinction in this case. Here the position is almost the reverse. In order to understand why this may be so, it is, regrettably, necessary to revisit once more the facts of this case. That task however, serves to confirm my scepticism about an exercise in which trained lawyers pore over the papers presented for judicial review in search of arguments, admissions or omissions which can be deployed to advance their argument, and my preliminary view that it would be preferable if these matters were addressed in a trial court with, if necessary, the capacity to pursue issues through oral evidence and to revisit those issues as the case proceeded. Insomuch as scrutiny inevitably is brought to bear on the investigatory work of the gardaí, I believe it should be understood, first, that the process of trial in due course of law is focussed on the trial of the issues of fact and law between the prosecutor and the accused and only addresses questions of investigatory process insomuch as it is relevant to that task and second, that any review of actions taken at the time must be conscious that those matters are to be judged by the circumstances of the time rather than through the high powered lens afforded by the reflection over time by trained lawyers, with endless, and it seems, perfect hindsight on the single issue to which attention is directed in the particular case.
32. Having reread the papers and exhibits, I should record my impression that the investigation here was thorough. The Book of Evidence runs to 70 pages and contains statements from 18 witnesses. The disclosure of additional material and original statements runs to more than a hundred pages pursuing a number of issues not the subject of attention or comment in these proceedings. The carrying out of these inquiries and the taking of the statements all involve a considerable amount of time, quite apart from all other work in which the relevant gardaí may have been engaged. The relevant sequence appears to be that the accident occurred in the early hours of the 14th of August 2005. The scene was examined by Sergeant Colm Finn, a trained forensic collision inspector, who was called to the scene of the fatal and life changing accident in order to carry out a forensic reconstruction of the incident. He did not carry out any fingerprinting tests and since he did not give oral evidence, and was not asked to do so, we do not even know if that was among his functions or skills or was normally done at the scene of fatal accidents where the driver is in the driving seat and there are many witnesses to the driving. In any event, no complaint is made about this. He did find that the interior of the car had suffered such extensive damage that it was not possible to examine it.
33. We do, however, know quite a lot about the scene at which he attended. In the words of one of the witnesses, it was “a scene of carnage”. One of the occupants of the car, Ciara Brack, was trapped hanging out through a window. She was bleeding and had been physically sick. She had sustained tissue damage to her brain, stitches to her head, a clot on her spleen and a nerve fracture to her left arm. Emma Wall who had been a front seat passenger was lying on the back seat in shock, with visible wounds to her legs, right thigh and calf area and obvious intra-abdominal bleeding. At 4.10 that morning she died from her injuries. Two male occupants of the car were seen by the driver of the other car to be engaged in a row, first in the car and then outside. Stephen Wall, a brother of Emma Wall and a cousin of the accused, has said that he went to Jason Wall and told him that if anything happened to his sister he would “punch the head off him”. Jason Wall does not accept this and suggested he had a row with another friend. The gardaí pursued this question and the additional disclosure contains a statement form that young man which does not support Jason Wall’s account. It appears clear that Jason Wall was involved in getting the driver, Lindsay Hudson, out of the driver’s seat and out of the car. The motor vehicles were removed to Gannon’s yard where they were inspected on the 17th of August by Garda McCallion, a PSV inspector, and were inspected again by Sergeant Finn on the 23rd of August. In between these inspections, on the 18th of August, Lindsay Hudson made a statement to Sergeant Daniel Garrity in which she alleged that Jason Wall had grabbed the steering wheel.
34. It is said on behalf of Jason Wall that the fact that the making of this statement ought to have led to the taking of fingerprints either by Sergeant Finn on the 23rd or at least before the removal and scrapping of the car which occurred by the 29th of that month at the latest. Alternatively, it is said that the vehicle should have been maintained to allow such fingerprint testing to be carried out on behalf of Jason Wall. There is no doubt that if a finger print test had been carried out, or the vehicle retained, these arguments could not have been made, but the question whether a trial should be prohibited depends on an analysis of the culpability of that omission, and the materiality of the evidence which was not obtained in the context of the case as a whole. While in retrospect it is certainly unfortunate that members of the gardaí did not immediately act upon Lindsay Hudson’s statement or anticipate that further evidence from Stephen Wall or someone else might change the focus of their inquiries and make fingerprint evidence possibly useful, and not just to the defence, I do not think that the investigation can be fairly characterised as grossly deficient or seriously negligent.
35. The observations made in the last sentence of the foregoing paragraph have been subjected to forceful scrutiny in the judgment my colleague Mr Justice Hardiman delivers. Recognising the force of the analysis as I do, I cannot however agree. If it was an inference that the focus of the Garda inquiries changed it was one that seemed, and seems, inescapable (since at a most basic level the initial Garda forensic examination placed the blame for the accident squarely on the driver, and a passenger is now charged) and uncontroversial. It is not the only inference drawn from the evidence in this case. The reference to retrospect was intended to do no more than observe that it was clearer now that fingerprints should have been sought than it may have been at the time when different people were taking the statements, examining the car, directing the investigation and deciding to dispose of the car. It does appear to me relevant that the issue is considered in terms of what the Gardaí should or ought to have done. If it were not, it would not be necessary to debate what the Gardaí did or did not do and the strength of the epithet to be applied to their conduct. Indeed the stress laid on the fact that one member of the Gardaí had taken Ms Hudson’s statement inculpating Jason Wall before the car was removed for destruction is consistent with an approach which considers it relevant that the gardaí were at fault in releasing the car. Would anyone contend that this trial should be prohibited if the car was no longer available for fingerprinting because of factors outside the control of the Gardaí or prosecution generally, such as a fire at the scene of the accident or indeed thereafter? It seems to me that what the prosecution does can be relevant to the fairness of the trial. I would wish to repeat however that these references should not be understood as contending for a test that trials should only be prohibited when the police are shown to have acted in bad faith.
36. I would accept that materiality is perhaps the factor to which most weight should be given. It is possible to conceive of some cases where the evidence is so central that no fair trial could take place without it. But in more contestable cases where a trial could take place in the absence of the evidence, it is not irrelevant to the court’s assessment if the evidence was lost through carelessness, gross negligence or worse. Here I was merely recording my impression of the garda inquiry generally. I do not understand that the concept of materiality should be controversial. It is no more than the idea that there must be a real engagement in a specific way with the evidence actually available in the case. Mc Farlane v DPP [2007] 1 IR 134. If in a case such as this there was no question of another actor and a prosecution was brought against the owner driver of a car, would it be suggested that the release of the car for scrappage would mean that no trial could take place? Obviously most contested cases are more complex and nuanced, which is a further reason perhaps to consider that they should be addressed either before, or at, a trial which “will be able to assess, on the evidence as it actually develops, whether there is any unfairness to the applicant, incapable of remedy by the trial court, for which the prosecution is responsible “(McFarlane, 147) rather than by a process of drawing inferences from affidavits.
37. What then is the potential significance in this case of fingerprint evidence, or more precisely, evidence that no fingerprints could be detected? In my view, it is very far removed from the type of demonstrably exculpatory test involved in Arizona v. Youngblood. This was not a car in pristine condition awaiting investigation. It was a car involved in a serious accident in which the front seat passenger received fatal injuries and a rear seat passenger was trapped in the car, seriously injured, and had to be removed from it. In addition, the driver was removed from the car by Jason Wall himself. The interior of the car was so damaged it could not be inspected at the scene. It was not the case that this was the first time Jason Wall was in the vehicle, in which case the presence or absence of fingerprints, if capable of being found, might have particular significance. On the contrary, Mr Wall’s affidavit goes to some lengths to explain why it is to be expected that his fingerprints would have been found in the car and on the steering wheel. It is said in the replying affidavit of Sergeant Denis Whelan, and apparently accepted, that Jason Wall was the then boyfriend of Lindsay Hudson and had been in the car on an almost daily basis and sat in the driver’s seat on several occasions. Mr Wall addresses this specifically in his own affidavit as follows:
“I appreciate that the presence of my fingerprints in any part of the car, including the steering wheel, would probably have been of little evidentiary value, as Lindsay was my girlfriend at the time and I would have been in the car anyway……”
But he goes on to say that he is advised, and believes, that the converse is not true in that the absence of fingerprints from the steering wheel could be considered to be highly relevant.
38. As the extract from the affidavit makes clear, this is a legal argument introduced through a witness’s affidavit, which is perhaps unobjectionable in ordinary judicial review, but which illustrates the difficulty in this fact specific context of assessing the evidence not in its raw state but as selected and presented through words directed towards a legal argument. In any event, I consider the argument is overstated as a matter of logic. The thrust of Mr Wall’s evidence as to his repeated presence in the car is that his fingerprints are to be expected to be found in the car and on the steering wheel. But if this is so, then if such prints were not found, it would be clearly wrong to conclude or infer that Mr Wall had not been in the car, or had not touched the steering wheel, because we know, on his own admission, that he had been there. The absence of fingerprints would prove only that; that fingerprints were not found. In the absence of some positive evidence that if the incident occurred as described by Ms Hudson and Stephen Wall it must have left a fingerprint on a wheel which would still have been detectable after the rescue efforts and movements involved in the recovery of the injured and the removal of the cars (and such evidence is neither likely nor suggested in this case), then evidence that fingerprints were not found is a world removed from the type of positive exculpatory evidence discussed in Arizona v. Youngblood, for example. At most if tests had been carried out and fingerprints not found it would have allowed an argument to be made to the jury that the absence of fingerprints was consistent with Jason Wall not having touched the wheel. But such arguments are the essence of criminal trials, and the failure to carry out a fingerprint test, and indeed the fact that the car is no longer available, allows a different argument to be made, one which this line of authority shows is persuasive to some, while depriving the prosecution of whatever argument might be made as to the conclusions which might be drawn from a positive result. This must be placed in the context that there are already a number of arguments canvassed in this case on behalf of the defence including the failure to test Ms Hudson for consumption of alcohol, the likely absence of the driver of the other car, and the fact that the initial statements of Ms Hudson and Stephen Wall did not inculpate Jason Wall. In all the circumstances, I do not see how the matters complained of reach the point of requiring that a trial be prohibited.
39. The fundamental facts in this case are that a young woman was killed and others injured as a result of a manoeuvre carried out which caused the car to cross to the incorrect side of the road, and collide with another vehicle. It seems common case now that whatever caused the fatal swerve occurred inside the vehicle in the fateful moments before the collision. There were five people in the car at the time. One of them is dead and two of them have now given accounts of what transpired which, if the trial proceeds, they will give orally, on oath, be cross-examined upon, and which will be considered by the jury under the guidance of a judge, in the context of all the evidence and arguments in the case. Put at its lowest, I do not consider that the administration of justice requires that such a trial should be prevented.
Judgment of Mr. Justice Clarke delivered the 11th December, 2013.
1. I agree with the judgment about to be delivered by MacMenamin J. and the order dismissing the appeal which he proposes. That is sufficient to dispose of the case.
2. However, I also wish to indicate my agreement with the observation of O’Donnell J. to the effect that the jurisprudence in this area deserves, as he puts it, “a comprehensive re-examination”.
3. While this case can, for the reasons advanced by MacMenamin J., be dealt with without any such re-examination and while, therefore, I would leave to another case where any such re-examination might prove decisive, a final judgment as to what the results of any such re-examination should be, I nonetheless would record my agreement with the analysis of the authorities both in this jurisdiction and others engaged in by O’Donnell J.
4. My principal purpose for adding a brief judgment of my own to those other judgments in this case is to indicate one further question which, it seems to me, may require further consideration in the future. One of the points made by MacMenamin J. is that the possibility of obtaining evidence concerning fingerprints on the driver’s wheel (which is at the heart of the issues in this case) might, of course, have been lost in circumstances where no case could conceivably have been made of any culpability on the part of anyone involved in the investigation. The steering wheel could, for example, been destroyed by a combination of the accident and the urgent attempts of emergency services to deal with its aftermath.
5. It is in the context of a comparison between evidence which either never existed or became lost in wholly unblameworthy circumstances, on the one hand, and the sort of cases involving culpability in relation to missing evidence with which the jurisprudence in this area is concerned, on the other, that gives rise, in my view, to a need to consider whether there is a basis for some refinement in the way in which the test is expressed.
6. It may be easiest to move away from the facts of this case and consider, as an example, a case of the most typical type found in the jurisprudence in this area being cases involving CCTV footage.
7. It is, of course, the case that nowadays many areas, and not just in the centres of cities and towns, have CCTV cameras for one purpose or another. Footage from such cameras can often cast useful light on incidents which may be the subject of criminal investigation. But until recent times no such footage would have been available. Many offences of assault and the like involved often conflicting eye witness or participant evidence which finders of fact, be they judges or juries, had to resolve as best they could having regard to the criminal standard of proof. Sometimes there might be forensic evidence available which might assist. However, there can be little doubt that a decent piece of CCTV footage can make the task of those having to decide what actually happened an awful lot easier. But what if, through no-one’s fault, the CCTV footage is not available. Perhaps the camera was not turned on, perhaps it was defective, perhaps it was pointed in the wrong direction. It could not, of course, in those circumstances, be argued that an accused could not get a fair trial.
8. It might, hypothetically, have been useful to the accused had there been such footage for it might have corroborated his account of events. But it is just not there and deciders of fact have, as many predecessors in the past had, to do the best they can. It is important, therefore, to emphasise that the test is not just one of a risk of an unfair trial simpliciter. If it were then the test would apply equally to a case where evidence just was not available as it would to one where the evidence had not been properly sought or preserved by the investigating authorities. Rather the test must be that the relevant difficulty stems not from any intrinsic unfairness in the trial as such but rather the unfairness of a person being tried in the absence of evidence which ought to be available. It seems to me to be clear that the test must be characterised in that way.
9. What further consequences may flow from such an analysis is a matter for further debate. Should, for example, all cases of missing evidence be treated in the same way irrespective of the reason for the non-availability of the relevant evidence and the extent of culpability that might be attributed to those involved in the investigation. Or, in the alternative, is it necessary to weigh in the balance all of the circumstances surrounding why the evidence is missing. Given that some degree of culpability in respect of the evidence being missing is a necessary ingredient of the test it is by no means beyond argument that the actual degree of that culpability may itself form part of the test. However, I would leave a final decision on any such matters to a case where that question might turn out to be decisive.
10. As indicated earlier I agree that, for the reasons advanced by MacMenamin J. in his judgment, this appeal can be disposed off without any definitive re-examination or re-appraisal of the underlying jurisprudence.
